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[2019] ZAGPPHC 368
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President of the Republic of South Africa v Public Protector of the Republic of South Africa and Others (41636/19) [2019] ZAGPPHC 368 (8 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE
NO:
41636/19
8/8/2019
In the matter between:
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
Applicant
And
THE PUBLIC PROTECTOR OF THE REPUBLIC
OF SOUTH
AFRICA
1
ST
Respondent
PRAVIN JAMNADAS
GORDHAN
2
ND
Respondent
ECONOMIC FREEDOM
FIGHTERS
3
RD
Respondent
JUDGEMENT
MOLOPA-SETHOSA
J
[1] The applicant, the President of the Republic of
South Africa (the President) has launched an application
on an urgent
basis for an order in the following terms:
“
2. It is declared that
the President of the Republic of South Africa has complied with the
remedial action of the Public Protector
of South Africa (Public
Protector) arising out of the investigation and report into
allegations of maladministration and impropriety
in the approval of
Mr Ivan Pillay’s early retirement with full pension benefits
and subsequent retention by the South African
Revenue Services
bearing reference number 2019/20 (the Report) in that the President
has:
2.1 in compliance with
paragraph 7.1.1 of the Report noted the adverse findings made in the
Report against the second respondent
(the Minister;) and
2.2 within 30 days of the
issuing of the report and in compliance with paragraph 8.1 of the
Report submitted an implementation plan
to the Public Protector
indicating how the remedial action in paragraph 7.1.1 of the Report
will be implemented (the implementation
plan).
3. The President is
directed in accordance with the implementation plan and subject to
the decision of this court in the review
application under case
number 36099/2019 (the Minister’s review application), to take
appropriate disciplinary action against
the Minister within thirty
(30) days from the date of the final determination of the Minister’s
review application, including
the final determination of any
subsequent appeals.
4.
Alternatively to
paragraph 2 and 3 above
, it is directed that the President’s
obligation to implement the remedial action of the Public Protector
in paragraphs 7.1.1
and 8.1 of the Report is stayed pending the final
determination of the Minister’s review application, including
the final
determination of any subsequent appeals.
5. That costs of this
application shall be paid by any such respondent who opposes the
application on an attorney and own client
scale including costs of
two counsel.”
The
parties:
[2]
The applicant is the President of Republic of South Africa
(hereinafter referred to as “the
President”). The
first respondent is the Public Protector of South Africa (hereinafter
referred as “the Public
Protector”). The second
respondent is Pravin Jamnadas Gordhan (“Minister Gordhan”).
The Economic Freedom
Fighters hereinafter referred to as “the
EFF”) brought an application to intervene in these proceedings.
Both the President
and the Public Protector are not opposing the
EFF’s application for intervention. Accordingly, the EFF
is joined in
these proceedings as the third respondent.
[3]
Minister Gordhan is not opposing the application and he supports the
application by the President.
Both the Public Protector and the EFF
are opposing the application.
[4]
As already indicated this matter come on an urgent basis. Urgency is
not in issue; all the parties
are agreeing that it is in the best
interest and in the protection of our democracy that this application
be dispensed with as
quickly as possible.
Points in
limin
e:
[5]
The Public Protector had raised some points in
limine
primarily relating to the
jurisdiction
of this court to deal
with this matter on the issue of the declaratory order sought by the
President on the basis that the President
has failed to fulfil his
Constitutional obligations which arise from Section 83 of the
Constitution of the Republic of South Africa,
1996 (hereinafter
referred to as “the Constitution”); as well as
non-joinder
of Messrs Ivan Pillay (“Pillay”)
and Edward Kieswetter (“Kieswetter”), the erstwhile and
current
commissioners of the South African Revenue Services (“SARS”)
respectively, in these proceedings.
[6]
It was agreed that I should not deal with the points in
limine
at the beginning of the case as it is usually done, but that I should
rather hear the whole argument on both the points in
limine
and the merits of the application and then decide on this at the end
of the case. I will thus deal with the points in
limine
below.
Background
facts
The following is a summary
background to the issues leading to this application:
[7]
On 24 May 2019 the Public Protector published a report bearing
reference number 24/2019/20 (“the
report”) containing
findings made and the remedial action to be taken against Minister
Gordhan. The remedial action
arises out of the Public
Protector’s report on investigation into allegations of
maladministration and impropriety in the
approval of Pillay’s
early retirement with full pension benefits and subsequent retention
by SARS.
[8]
The remedial action includes that the President must take
disciplinary action against Minister
Gordhan. The remedial
action that is relevant to this application states the following:
“
7.1:
The President of the
Republic of South Africa
7.1.1 to take note of the
findings in this report insofar as they related to the erstwhile
Minister of Finance, Mr Gordhan and to
take appropriate disciplinary
action against him for failing to uphold the values and principles of
public administration entrenched
in Section 195 of the Constitution,
and the duty conferred on Members of the Cabinet in terms of Section
92(3)(a) of the Constitution,
to act in accordance with the
Constitution.
8
MONITORING
8.1:
The
President of the Republic of South Africa must, within thirty (30)
days from the date of the issuing of this report and for
approval of
the Public Protector submit an Implementation Plan to the Public
Protector indicating how the remedial action referred
to in paragraph
7.1 of this report will be implemented.”
[9]
On 28 May 2019 Minister Gordhan launched a review application in this
court under case number 36099/2019,
amongst others, for the Public
Protector’s report [No. 24/2019/20] to be reviewed and set
aside, declared unconstitutional,
unlawful, irrational, and invalid;
including the remedial action in paragraph 7 of the report
aforesaid.
[10]
The President submitted an implementation plan wherein he sets out
his plan of action on the terms set out in a letter
dated
19
June 2019
addressed to the Public
Protector, wherein he states the following, and I read from paragraph
5 of the said letter:
“
5.
My letter is in accordance with my obligation in paragraph 8.1 of
your report.
6. In
relation to your direction to submit my Implementation Plan I reply
as follows:
6.1 I have noted the
findings against Minister Gordhan in your report.
6.2 I have noted, too,
the assertions made by Minister Gordhan in his review application
that your report falls to be reviewed
and set aside because it is
allegedly ultra vires Section 6(9) of the Public Protector Act,
issued by means of an unfair procedure
and tainted by misdirections
of law and fact.
6.3 One of
the legal complaints raised by Minister Gordhan is that the direction
that I take appropriate disciplinary
action against him is ‘vague
and impossible to implement in the absence of an employment
relationship between the President
and myself.’
6.4 Having
considered the findings against Minister Gordhan in your report and
his challenges to those findings
in his review application, I have
concluded that it would be inappropriate to take disciplinary action
against Minister Gordhan
at a time when
6.4.1 not only is there a
dispute pending before the High Court over the legality of the
findings on which to base such disciplinary
action, but also
6.4.2
my alleged power to exercise such disciplinary action is itself
legally contested by Minister Gordhan in that dispute
pending before
the High Court
.
7 In the
circumstances my implementation plan in respect of the remedial
action set out in paragraphs 7.1 of your report
is the following:
7.1 I
have complied with the order to take note of the findings against
Minister Gordhan in your report.
7.2. I have
concluded that the process of taking
appropriate
disciplinary action against Minister Gordhan would best be served by
waiting until the legal processes of his review proceedings
have
clarified
7.2.1 what disciplinary
powers, if any, the Constitution allows me to exercise over Minister
Gordhan beyond removing him from
Cabinet; and
7.2.2 whether there are
lawful grounds for the exercise of any such disciplinary powers.
7.3
I intend,
accordingly to defer my decision on what disciplinary action if any
to take against Minister Gordhan until final determination
of his
review application.
8. I trust that you are
satisfied with this Implementation Plan. If you are not
satisfied and require me to exercise
any disciplinary powers I may
have over Minister Gordhan before his review application have been
finally determined, I invite you
to approach the High Court for an
order compelling me to do so.”
[11] As can be seen from the letter from the President,
just read above, the President explained the President’s
reasoning for the implementation plan adopted; especially at
paragraphs 6.3 and 6.4 above.
[12] The Public Protector replied to the President’s
letter aforesaid as follows in a letter dated
26 June 2019
:
“
2. It is trite
that the remedial actions from of the Public Protector are binding
unless set aside by a
court order as was stated by Mogoeng Mogoeng CJ
in the matter between Economic Freedom Fighters v Speaker of National
Assembly
[2016] ZACC 11
.
Whilst
it is established law that a report of the Public Protector can be
reviewed and set aside through a judicial review application,
the
institution or intention to institute such proceedings does not
automatically pend the implementation or enforcement of the
remedial
action.
3. As the
law currently stands a review application does not suspend the
enforceability of a decision administrative
act, or a judicial edict.
This principle was settled by the Supreme Court of Appeal in the
matter of the SABC v DA 2016(2) SA 522
SCA where the court reaffirmed
the position as laid in Oudekraal Estates (Pty) Ltd v City of Cape
Town and Others
2004 (6) SA 222
(SCA) that that ‘is well
settled in our law that until a decision is set aside by a court in
proceedings for judicial review
it exists in fact and it has legal
consequences that cannot simply be overlooked’. It is
clear from the above that
any advice to the effect that a review
application stays the implementation of the remedial action is
incorrect and is a sheer
display of cluelessness on the person giving
such advice.
4 To
this end, the President’s letter is not only based on the wrong
understanding of the law but
on a mere assurance by a third party
that the President should not comply with my remedial action.
5
The President’s refusal to act on my remedial action is a
failure on the President’s part
to uphold the Constitution.
Absent of an order directing otherwise, my remedial action are (sic)
binding and compliance thereto
is not optional. Contrary to the
President’s advice that I should approach a court for
compelling compliance, it is the President
who must approach the
court to interdict my remedial action. This is also another
indication that the President relies on
incorrect advice legal or
otherwise. I can deduce from the President’s letter that
the decision not to implement was
a foregone conclusion as it is
merely based on Gordhan’s assertions, and nothing else.
6 In
an attempt to dispel the myth that a mere review application
automatically suspends an impugned
decision, I copy Mr Gordhan’s
legal representatives on this correspondence.
7 The
Public Protector will therefore persist with the enforcement of the
implementation of the remedial
action to the parties directed
agains,t until such time that an interim order interdicting same is
obtained.”
[13] On the
3
rd
July
2019
the President responded to the letter of the Public
Protector aforesaid, stating that he fears that the Public Protector
has misunderstood
his letter of 19 June 2019 in that he has not
refused to act on the Public Protector’s remedial action.
He/the President,
inter alia
also states as follows:
“
The
relevant paragraphs of your report directs me to take note of the
findings in this report insofar as they related to the erstwhile
Minister of Finance, Mr Gordhan and ‘To take appropriate
disciplinary action against him for failing to uphold the values
and
principles of public administration entrenched in Section 195 of the
Constitution, and the duty conferred on Members of the
Cabinet in
terms of Section 92(3)(a) of the Constitution, to act in accordance
with the Constitution’ and you further direct
me to submit
within thirty (30) days an implementation plan indicating how I will
implement the remedial action..
I have complied with your
direction by:
-
firstly,
taking note of the findings in your report insofar as they relate to
Minister Gordhan, and
-
secondly,
sending you an implementation plan indicating how I will implement
the remedial action you have directed me to take within
the 30 days’
deadline that you directed I do so in paragraph 8.1 of your report.
You appear to have concluded
that I am refusing to act on your direction ‘to take
appropriate
disciplinary action against Minister Gordhan’.
This is not the case. In terms of your direction it is for me
to determine
what is ‘appropriate’ disciplinary action to
take. As pointed out in paragraph 5.4 (sic) of my letter of 19
June
2019 I have concluded
that at this stage
(for the
reasons stated in my letter) there is yet no action that would be
appropriate to take. I am advised that this a legally
sound
conclusion to reach on the basis of the judgment of the Supreme Court
of Appeal in Soutwerk (Pty) Ltd v Minister of Mineral
Resources and
Another
[2017] ZASCA 56
(19
th
May 2017). In this
case, the Department of Mineral Resources decided not to take steps
to finalize a mining right while two
private parties litigated over
the validity of that right in proceedings to which the Department was
a non-disputing party.
At paragraph 66 of the judgment, the
Supreme Court of Appeal stated the following:
‘
The
policy of the Department was not to finalize a mining right whilst
litigation was pending regarding the validity of that right.
It
was in my view in keeping with public and legal policy not to
undermine the legal process by determining that which the courts
were
called upon to decide.’
I believe that applying the
principle of the SCA judgment to the present situation, it is
perfectly in keeping with public and legal
policy for me to not to
undermine the legal process by determining that which the High Court
has been called upon to decide in
the dispute between Minister
Gordhan and yourself.
As proceedings in the review
application unfold the state of affairs in relation to appropriate
action may well change should this
happen I will promptly notify you
of any result and changes to my implementation plan.”
[14] In a further letter
dated
9 July 2019
the Public Protector responds to the letter
of the President aforesaid and states amongst others the following
and I quote from
paragraph 9:
“
9.
I fear that the Honourable President’s persistence on wilful
non-compliance with my remedial action which is based
on the
Honourable President’s incorrect interpretation of the law is
not only ostensibly contemptuous of my office but also
borders on a
breach of the Honourable President’s Constitutional duties as
spelled out in the Constitution.”
12 I therefore plead
with the honourable President to avert the Constitutional crisis
alluded to above by taking heed
of my advice and implementing the
remedial action as set out in the report
or obtaining a court
interdict to stay the implementation pending the outcome of the
review proceedings
or
even causing the implicated and/or
affected public officials to do so.
Such orders are
sought and obtained daily in our courts in respect of review
applications
targeted at
ordinary administrative action
let alone
the remedial action of the Public Protector
which
almost ranks as a court order in its binding effect.
At
paragraph
14
of this letter the Public Protector states the
following:
14 To the extent that
it could possibly be argued that there was any ambiguity as to what
the Public Protector meant
or intended in taking the remedial action
specified in the relevant report, which is disputed,
this letter
must serve
to remove any such alleged ambiguity and, given that
the timeframes originally determined have now already expired,
to
demand such implementation as a matter of urgency and preferably
by no later than Friday 12 July 2019.
” [My underlining]
The
issues
[15]
From the reading of the papers and the correspondence between the
President and the Public Protector aforesaid
the main issue between
the parties can be defined as follows:
-Whether the President has complied with the
Public Protector’s remedial action contained in the Public
Protector’s
report of 24 May 2019 this is what the declarator
seeks to achieve through prayers 1, 2, and 3 of the Notice of Motion.
-Alternatively, whether the President has made
out a case for the stay of the President’s obligation to
implement the remedial
action of the Public Protector in paragraphs
7.1.1 and 8.1 of the report, pending finalization of Minister
Gordhan’s review
application.
[16]
The President’s case is that he has complied with the remedial
action of the Public Protector contained in the
report aforesaid.
[17]
In the alternative, and in the event the Court finds that the
President has not complied with the remedial action of
the Public
Protector, the President contends it is in the best interests of
justice that the President’s obligation to implement
the
remedial action of the Public Protector be stayed pending the final
determination of Minister Gordhan’s review application.
[18]
Minister Gordhan is not opposing the President’s application.
He supports the President’s application on
the basis that there
is no compelling reason to immediately implement the remedial action
imposed by the Public Protector in the
report.
[19]
Both the Public Protector and the EFF are opposing the application
and contend that the President has not complied with
the Public
Protector’s remedial action and has not made out a case for the
stay of the implementation of the remedial action.
[20]
The Public Protector further contends that the President refuses to
implement the remedial action of the Public Protector
and that that
undermines the office of the Public Protector. Further that the
President seeks an order against himself to
suspend the powers of the
President to act expeditiously against members of the National
Executive against whom there are adverse
findings. She contends
that in granting the order sought by the President the Constitution
work of the Public Protector would
be undermined, stifled and
incapacitated. The Public Protector furthermore contends that “
the
court is being asked to provide legal advice to the parties
”,
i.e. that the President has launched this application to seek legal
advice from the Court.
[21]
The EFF contends that the President has not complied with remedial
action of the Public Protector as he has
up to now not taken any
disciplinary action against Minister Gordhan. The EFF further
contends that the President has not met the
requirements for an
interim relief as set out in Setlogelo v Setlogelo. That the
President must immediately take disciplinary action
against Minister
Gordhan, irrespective of the pending review application.
[22]
As correctly contended and submitted on behalf of Minister Gordhan,
the Public Protector accepts that the
fact that there is a review
application does not stay the implementation of the remedial action,
in the absence of a court order.
This application thus is not
seeking legal advice from the court. The application is seeking
a declaratory relief
or
a stay as is usually granted in such matters pending the final
determination of the review application.
[23]
From the correspondence referred to hereabove between the President
and the Public Protector it is clear
that the Public Protector has no
regard whatsoever to the implementation plan proffered by the
President; and in fact insists on
immediate disciplinary action by
the President on Minister Gordhan; so does the EFF.
[24]
Clearly here the President is seeking the Court’s assistance
because of the opposition he encountered
from the Public Protector to
his implementation plan. This is the only avenue to the
President in the face of the Public
Protector’s ultimatum to
him, as postulated in the Public Protector’s letter dated 9
July 2019, challenging the President
as well, to bring this
application, to do precisely what the President is doing now seeking
a temporary suspension of the implementation
of the disciplinary
action/remedial action pending the outcome of the review launched by
Minister Gordhan who challenges the report
and its remedial action.
[25]
In essence the President, as stated above, the President contends
that he has complied with the remedial
action, however, he seeks the
suspension of the implementation of the disciplinary action against
Minister Gordhan.
[26]
It is clear that the parties are in disagreement as to what is
required of the President flowing from the
Public Protector’s
report and thus the President has approached this court to provide
clarity on these issues.
[27]
There is no cogent reason proffered by the Public Protector, and the
EFF for that matter, as to why the disciplinary
action should be
implemented immediately prior to the final determination of the
pending review of the report and the remedial
action of the Public
Protector launched by Minister Gordhan. It was submitted on
behalf of Minister Gordhan that this is
so particularly given the
vague and confusing formulation of the remedial action itself.
[28]
As stated above, the remedial action in the report required that the
President
take note of the findings
in the report insofar as they relate to Minister Gordhan. It is
not in dispute that the President has indeed taken note of
the
findings of the report and informed the Public Protector in writing.
The Public Protector self accepts that the President
has taken note
of the findings of her report insofar as they relate to Minister
Gordhan.
[29]
The remedial action set out in the report does not stipulate
when
the President is to take appropriate disciplinary action. The
President contends, and it was so submitted on his behalf,
that the
Public Protector has left the issue pertaining to
the
time when
to take the
appropriate
disciplinary action [and the
how
]
to the discretion of the President.
[30]
At paragraph 14 of her letter of 9 July 2019 the Public Protector
gave the President an ultimatum to comply
with the remedial action,
more specifically to take disciplinary action against Minister
Gordhan by the 12
th
August 2019, and this in essence prompted the President to bring this
urgent application [which was launched on 16 July 2019].
The
aforesaid ultimatum is basically a variation and/or alteration of the
Public Protector’s remedial action since, in the
report there
is no time stipulation within which the President must take
appropriate disciplinary action. The thirty (30) days
postulated in
paragraph 8.1 of the report refers to the time within which the
President must ‘submit an implementation plan
to the Public
Protector indicating
how
the remedial action referred to in paragraph 7.1 of the report will
be implemented’; and in his letter to the Public Protector,
dated 19 June 2019, the President outlined his implementation plan.
[31]
Of course it is incumbent on the President to act within a reasonable
time, however, the President having
adopted a sensible approach
states that he will await the finalization of the review application
launched by Minister Gordhan,
and his reasons are fully set out
in paragraph 6.4 of the said letter. The President’s approach
allows the review Court
to pronounce on the merits of Minister
Gordhan’s review, vindicating Minister Gordhan’s right to
access to justice
and upholding the rule of law.
[32]
The EFF contends that since the President has not taken the Public
Protector’s report on review he
has clearly accepted the
factual findings of the report and that therefore he must take
disciplinary action against Minister Gordhan
immediately.
[33]
I may state that the President at no stage in his affidavits- both
the founding affidavit and the replying
affidavit does he attack the
factual basis of the report; nor does he deny that the remedial
action is binding on him and also
he acknowledges that a review
application does not necessarily suspend the implementation of a
remedial action unless such remedial
action is suspended and/or
stayed by a court of law.
[34]
The suspension and/or stay of the Public Protector’s remedial
action, by a court of law has been ordered
and/or obtained many
times, even with the consent as well of the Public Protector; for
example, there is a matter which came before
this court on Tuesday
30 July 2019, in Phumelela v The Public Protector, The President
and Others, Case No.51631/19 wherein
the applicant, Phumelela brought
an application on an urgent basis interdicting the immediate
implementation of the remedial action
contained in paragraph 8 of the
Public Protector’s report 2019/20 imposed by the Public
Protector pending finalization of
Phumelela’s review
application. The Public Protector did not oppose that
application and in fact consented to the order
staying the
implementation of the remedial action pending the final determination
of Phumelela’s review application to have
the report of the
Public Protector reviewed and set aside.
[35]
Also, on 01 August 2019, in another matter involving the President
and the Public Protector, in a letter
provided to this Court, the
Public Protector basically consented to a suspension and/or staying
of the implementation of her remedial
action, pending finalization of
the President’s pending review application. The legal
principles in the above cases are similar
to the matter at hand here.
The suspension or stay of the remedial action in the aforesaid cases
has the same effect and same legal
principle as in this matter.
[36]
Both the President and Minister Gordhan question why in this case the
Public Protector is not being consistent in agreeing
to the
suspension of the implementation of the disciplinary action and/or
her remedial action. I may state that there are
two cases in
this Division which lay precedence for this Court to grant this
application as I cannot and do not find fault in any
of the
judgements alluded to. The one is the matter of Pravin Gordhan v The
Public Protector and Others, case no. 48521/19, which
was heard on 23
July 2019 before my sister Potterill where the effect of the order
granted interdicting the implementation of the
remedial action
temporarily pending finalization of the review. The legal principle
in that case basically has the same effect
as in this one. The other
case from this Division [though Gauteng South] by my brother Makume J
in Democratic Alliance v Jacob
Gedleyihlekisa Zuma [the erstwhile
President of the Republic of South Africa] and another, case no.
21029/2017 where the erstwhile
President Zuma had launched an
application for the stay of the implementation of the remedial action
of the Public Protector pending
finalization of his review
application; which order was granted by Makume J suspending the
operation of the remedial action issued
by the Public Protector. The
effect of the orders, and the legal principles in the above mentioned
cases have the same effect as
in this case; i.e. having the
implementation of the remedial action suspended, in this President’s
case, more specifically
pertaining to the disciplinary action which
the President is implored to take against Minister Gordhan. With
regards the doctrine
of precedence
the
Supreme Court of Appeal held
as
follows in Patmar Explorations (Pty) Ltd and Others v Limpopo
Development Tribunal and Others
2018 (4) SA 107
(SCA)
at paras [3]-[4].
“
[3] . . .
The
basic principle is stare decisis, that is, the court stands by its
previous decisions, subject to an exception where the earlier
decision is held to be clearly wrong. A decision will be held to have
been clearly wrong where it has been arrived at on some fundamental
departure from principle, or a manifest oversight or
misunderstanding, that is, there has been something in the nature of
a palpable
mistake. This court will only depart from its previous
decision if it is clear that the earlier court erred or that the
reasoning
upon which the decision rested was clearly erroneous. The
cases in support of these propositions are legion. The need for
palpable
error is illustrated by cases in which the court has
overruled its earlier decisions. Mere disagreement with the earlier
decision
on the basis of a differing view of the law by a court
differently constituted is not a ground for overruling it.
[4] The doctrine of stare decisis is one that is fundamental to
the rule of law. The object of the doctrine is to avoid uncertainty
and confusion, to protect vested rights and legitimate expectations
as well as to uphold the dignity of the court. It serves to
lend
certainty to the law.”
[37]
Besides the principles relating to precedence, the matter basically
also relates to
consistency
.
The President and Minister Gordhan are correct in stating that there
is no consistency in the manner of approach and conduct of
the Public
Protector, and further that there are two cases which I have already
mentioned the one by my sister Potterill J the
other by my brother
Makume J which have the same legal principles which have the same
effect to the matter at hand; and it is mind
boggling basically why
in this matter the Public Protector did not even consent to at least
if she does not want to consent to
the declaratory order to have the
remedial action stayed pending finalization of the review application
launched by Minister Gordhan.
Of
importance is that immediately after the judgement of Potterill J
under Case No. 48521/19 on 29 July 2019 in the aforesaid case
between
Minister Gordhan and amongst others the Public Protector, which case
is in issue herein, the Public Protector sent a letter
dated 29 July
2019 consenting to the relief sought in the Phumelela case mentioned
above which order was granted on 30 July 2019;
and in essence as I
have indicated hereabove is similar in principle to this case
[38]
The Public Protector contends that there is a close relationship
between the President and Minister Gordhan
i.e. that they are friends
and that the President basically is protecting Minister Gordhan.
The President disputes this,
correctly stating that the allegation in
this regard is spurious, in fact, he even did not want to give that
assertion any dignity
and he correctly states this has to do with
legal issues that the Court has to determine; it has nothing to do
with any friendship
between the President and Minister Gordhan.
I am not even going to consider that, I am of a view that that merely
clouds
the issues.
[39]
The issue here is whether the President has complied with the
remedial action or not; if he has not he is
seeking an alternative
relief to have the implementation of the remedial action more
specifically implementation of the disciplinary
action against
Minister Gordhan stayed until finalization of Minister Gordhan
review.
[40] Looking at the facts and
the correspondence between the parties and on a proper reading of the
letter by
the President to the Public Protector the first letter, the
letter of 19 June 2019 the President has complied with the remedial
action. The Public Protector herself states that she required
the President to take three actions:
[40.1] To take note of the findings against the
Minister-the President has taken note of the findings.
[40.2] To take appropriate disciplinary action
against the Minister-the President has submitted an implementation
plan detailing
that he intends deferring his decision on what
disciplinary action to take pending finalization of the review
application.
[40.3] To provide the Public Protector with an
implementation plan for the Public Protector’s approval
indicating how the
remedial action will be implemented- the President
has timeously submitted his implementation plan to the Public
Protector.
[41]
Clearly the Public Protector does not approve of the implementation
plan which the President submitted to
her. This, however, does not
negate the fact that the President, has, in compliance with the
remedial action, submitted the implantation
plan within the
stipulated thirty (30) days from date of the report, setting how he
intended dealing with the disciplinary action.
[42]
What does one do if the Public Protector does not approve of one’s
implementation plan? One would
do what the President has done,
one would approach the court. The Public Protector herself has
indicated in the letters that I
have read, i.e. in the correspondence
that I have read into the record, it appears many times from what the
Public Protector says
to the President that the review does not
suspend the operation of the remedial action unless a party
approaches the court for
a stay or suspension of such remedial
action. I have already stated that the Public Protector has
consented, in this week
only she has consented to about two, no, it
is not this week, it is last week, on the 30
th
July and the 1
st
August 2019, she consented to two suspensions of her remedial actions
pending finalisation of the review applications in the respective
applications.
[43]
Counsel for the President as well of the second respondent, Minister
Gordhan, suggest that the Public Protector
is taking this matter
personally and when one sees the language she uses in her address to
the President that is now in the correspondence
that she has sent to
the President to tell the President that the people who are advising
the President basically she is saying
that they do not know the law
they are incompetent, in her words they ‘
display
cluelessness on the person giving such advice’
,
basically insulting the President’s legal adviser(s), yet she
herself complains basically in her affidavit, and submissions
were
made on her behalf in that regard, that Minister Gordhan is insulting
her in his founding affidavit in the review application
and she even
goes further to state that the President by not taking disciplinary
action and by stating that he does not regard
the Minister Gordhan’s
application as frivolous in fact is endorsing the insults that
Minister Gordhan is allegedly hurling
at her in his affidavits.
The President has set the record straight and in his replying
affidavit he states categorically
that he does not in any way
associate himself with whatever the Public Protector calls insults to
her by Minister Gordhan.
[
44]
Looking at the report itself, and as conceded, properly so, by the
Public Protector, the remedial action is silent on
when and how the
disciplinary action should be taken.
C
ounsel
for the President submitted that the remedial action gives the
President discretion of the time and form of the disciplinary
action
to be imposed on Minister Gordhan. And on a proper reading of the
remedial action, taking into account that there are no
time frames
within which to act, of course justice dictates that it must be
within a reasonable time, the President presented his
implementation
plan in terms whereof he stated what his plan of action.
[45]
All the President was required to do in order to satisfy the test of
compliance was to determine the
appropriate disciplinary action which
flows from the Report as it stands. The President in his letter to
the Public Protector outlining
his implementation plan specifically
states that the outcome of Minister Gordhan’s application will
inform what appropriate
action if any to take. On the facts, t
he
President has complied with the remedial action; in terms of the
timing and the form of the disciplinary action, the President
was
left with the discretion and he has duly exercised his discretion; he
has taken a sensible approach to say that he will defer
his decision
on what disciplinary action to take pending finalization of Minister
Gordhan’s review application. The President
is not saying that
he will not take disciplinary action against Minister Gordhan; he is
saying he will defer the implementation
of the disciplinary action
pending finalization of Minister Gordhan’s review application.
[46]
It is incumbent on the President to act reasonably and rationally and
in my view this is a reasonable and rational decision
which he has
taken.
The
outcome of the review will necessarily and materially inform the
content of any disciplinary action the President might have
to take
depending on the outcome of the review application whatever
disciplinary action will impact on Minister Gordhan
.
N
ow that there is a review application
pending launched by Minister Gordhan, it will be absurd for the
President to now take disciplinary
action against Minister Gordhan
while the review application is pending.
[47]
It was argued both on behalf of the Public Protector and the EFF that
the President in this case is not the
victim and that he was not
supposed to have taken, to have brought this application to stay the
implementation of the remedial
action that it should have been
Minister Gordhan who should have asked for the relief sought more
specifically pertaining to prayer
4 of the Notice of Motion, the
alternative relief. That argument loses sight of the fact that
the President is the one who
is obligated to take remedial action, it
is not like any man in the street who just comes and say I want to
bring this application
on behalf of someone. The President is the one
who is enjoined by the remedial action of the Public Protector to
take disciplinary
action against Minister Gordhan; and he has a right
to approach this court.
[48] In the correspondence
from which I have alluded to above, more specifically in the letter
to the President
dated
9 July 2019
, the Public Protector
herself states that either the implicated or affected party or the
President may approach a court for a suspension
or stay of remedial
action pending finalization of the review application; she states:
“
I
plead with the honourable
President to avert the Constitutional crisis alluded to above by
taking heed of my advice and implementing
the remedial action as set
out in the report
or obtaining
a court interdict to stay the implementation pending the outcome of
the review proceedings
or
even causing the implicated
and/or affected public officials to do so.
Such orders are sought and
obtained daily in our courts in respect of review applications
targeted at ordinary
administrative action let
alone
the remedial action of the Public Protector…”
[my underlining]
and as I stated, it is mind boggling that the
Public Protector is now not consenting or she has not consented to at
least the stay
of her remedial action pending finalization of Mr
Gordhan’s application.
[49]
It was suggested by both the Public Protector and the EFF’s
counsel, even in the answering affidavits that the
President can take
remedial action by way of, for example, reprimanding Minister Gordhan
or by way of suspending him or by way
of stating that he should
forfeit maybe one (1) month’s salary. This argument loses sight
of the fact that whatever action
could be taken impacts on Minister
Gordhan and that that would be irreversible in the event Minister
Gordhan were to be successful
in his review application.
Both
the Public Protector and the EFF contend that the President has not
complied with the remedial action because he will only
take
disciplinary action against Minister Gordhan in future. The President
contends, correctly so in my considered view, that this
is precisely
what the remedial action envisaged; i.e. that disciplinary action
would be taken in future in accordance with the
implementation plan.
Accordingly, the President cannot be said to have breached the
remedial action. The Public Protector
correctly left the timing and
the form of the implementation plan to the President. In terms of
section 91(2) of the Constitution
it is only the president who
appoints and dismisses Ministers.
[50]
I am deliberately not going to express my
prima
facie
view on the review application; I
leave it to the court that will be dealing with that review
application to decide; I do not want
to intrude onto the court that
will be hearing the review application. However, Minister Gordhan
like everyone else has rights,
and that is entrenched in the
Constitution; why subject him now to disciplinary action when there
is a review application pending,
the result of which is not known.
[51]
It is important and I will reiterate that the President is not saying
that he is refusing to implement the remedial action,
the President
accepts that the remedial action is binding further that the review
does not suspend it unless he approaches the
court as he has done and
he is not challenging in the affidavit he is not in any way
challenging the factual findings of the Public
Protector in the
report. All he is saying is let me await the final
determination of the review and to me that is rational
and reasonable
and as the President of all in the country not a friend, as the
President of all in the country including Minister
Gordhan he has to
as obliged by the Constitution act rationally and reasonably.
The
President’s approach accords with the requirement of
rationality. In
Minister
of Defence and Military Veterans v Motau and Others
2014 (5) SA 69
(CC) at para 98, the Constitutional Court affirmed
that “
[t]he
principle of legality requires that every exercise of public power,
including every executive act, be rational.
”
In
SA
Predator Breeders Association v Minister of Environmental Affairs
[2010] ZASCA 151
at para 28
,
the Supreme Court of Appeal explained a rationality review as
follows:
“
Rationality,
as a necessary element of lawful conduct by a functionary, serves two
purposes: to avoid capricious or arbitrary
action by ensuring
that there is a rational relationship between the scheme which is
adopted and the achievement of a legitimate
government purpose or
that a decision is rationally related to the purpose for which the
power was given, and to ensure the action
of the functionary bears a
rational connection to the facts and information available to him and
on which he purports to base such
action.”
[52]
It will be clear from what I have stated above that on the facts
before this Court, the Court is satisfied
that the President has made
out a case for the declarator sought and once the declaratory order
is granted prayers two and three
follow.
[53]
However, I want to state that even in the event that the President
would not have even succeeded on the declarator,
even
if one were to decide the matter on the alternative relief sought by
the President in prayer 4 of the Notice of Motion, besides
complying
with all the requirements set out in Setlogelo v Setlogelo
1914 AD
221
,
as stated by Makume J in the DA matter
supra,
it
would
be in the
best interests of justice to stay implementation of the disciplinary
action pending the finalisation of Minister Gordhan’s
review
application. The President has an obligation to protect the integrity
of all the citizens and institutions of our country
South Africa. If
one weighs the odds, there will be no prejudice to the Public
Protector and the EFF should the relief sought by
the President be
granted. On the other hand, Minister Gordhan, stands to be seriously
prejudiced should the President take disciplinary
action now, as
contended by the Public Protector and the EFF. If he is subjected to
disciplinary proceedings, but later vindicated
by the review court,
that relief will be nugatory as the remedial action would already
have been implemented against him.
[54]
But as stated in paragraph [50] hereabove my judgment and order will
be based mainly on the issue of the
declarator sought in prayer 1 of
the Notice of Motion, together with ancillary relief sought.
[55]
It was submitted on behalf of the Public Protector that since the
Public Protector has not approved
the President’s
implementation plan, there cannot be any talk of any compliance with
the remedial action; further that the
President is in contempt of the
remedial action since he still has not taken disciplinary action
against Minister Gordhan.
[56] What does one do when the Public
Protector does not approve of one’s implementation plan!!
In
Economic Freedom Fighters v Speaker of the National Assembly and
Others
2017(3) SA 580 CC-The
Nkandla
matter- the
Constitutional Court concluded that remedial actions by the Public
Protector are binding and should be implemented.
The President does
not deny that the remedial action of the Public Protector is binding.
He has taken cognisance of the review
application lodged by Minister
Gordhan; he has approached the Court for a declarator the effect of
which will be a stay of the
implementation of the disciplinary action
pending finalization of Minister Gordhan” review application; a
step which is recognised
by the Public Protector as the correct step,
both in correspondence with the President and in written submissions
that, as informed
by counsel for the President and not disputed by
counsel for the Public Protector, served before my sister Potterill J
on 23 July
2019. I reiterate that this was not disputed at all by
counsel for the Public Protector, both in the argument in chief and
in reply
by counsel for the President. The relevant paragraphs of the
written submissions aforesaid state as follows:
“
23.
In order to appreciate the approach of the Public Protector in this
application, it is necessary to identify the functionaries
that are
directed to implement the remedial action. It is the President, who
is the head of the national executive with the constitutional
power
to appoint the applicant and dismiss him. The remedial action
against the President is that he should, having regards
to the
findings in the report, take disciplinary action. The President
does not say that such a remedial action is impossible
to implement.
He does not say that it is practically and constitutionally
impossible to give effect. His position is
that the timeframe
within which to give effect to the remedial action must depend on the
merits of the review application and the
lawfulness of such action.
He appears uncertain about the power to discipline members of the
executive given that they do
not fall within the classical definition
of employees. They serve as his pleasure.
24. The
reservation[s] are well founded but cannot be cured by an interdict
against the remedial action.
In
other words, if the President’s attitude is that he needs the
outcome of the review application to perform his duty to
hold a
member of the executive to account, he could simply include that in
his implementation plan
.
He could inform the applicant that he has received and considered the
report which makes numerous adverse findings against
the member of
the executive. He could then ask for representations from the
member concerned.
In
this case it is clear that the applicant would inform the President
that he is taking the findings and remedial action to court
on review
on the basis of legality, irrationality and other grounds.
The
President could then submit an implementation plan to the Public
Protector that takes into account the applicant’s
representations.
Such plan would include timeframes that
accommodate the conclusion of the review application.
The
Public Protector could then consider the implementation plan and
endorse it. That way the President has complied with
the
remedial action of the Public Protector – affirming the
constitutional importance of the remedial action on the one hand
and
on the other ensuring that the member of the executive is held to
accoun
t
.
The position adopted by the President in this application to support
the applicant neither meets the constitutional obligation
to support
the Public Protector nor holds the applicant to account for the
findings made by the Public Protector
.”
[My emphasis]
The approach of the President is substantially at all fours with what
was submitted on behalf of the Public Protector in the written
submissions set out above. I repeat it is mind boggling why the
Public Protector is not acceding to what she in the first place
suggested.
[57] At paragraph [71] of
the Nkandla matter, the Constitutional Court further stated as
follows:
"In sum, the Public
Protector’s Powers to take appropriate remedial action
is
wide but
certainly
not
unfettered
.
Moreover,
the
remedial action is always open to judicial scrutiny". It is also
not inflexible
in its application but situational.
[My
emphasis]
[58] The Constitutional
Court stressed at paragraph [74] of the Nkandla decision, that
decisions,
although binding, are not immune from judicial scrutiny,
and said the following:
"This is so because our
Constitutional order hinges also on the rule of law. No decision
provided in the Constitution or law
may be disregarded without
recourse to a court of law. To do so would amount to a licence to
self-help.”
[59]
The President has taken the correct step in approaching the Court,
and this cannot be said to
be the President’s way to seek legal
advice from the Court. Issues are contentious between the parties and
in the absence
of consent from the Public Protector, required
adjudication.
[60]
So the fact that the Public Protector has not approved the
President’s implementation plan does not
mean that there has
not been compliance by the President. I have already stated that on a
conspectus of all the facts looking at
the conduct the engagement of
the President and at more specifically at the letter dated 19 June
2019 the President read with the
remedial action imposed on him the
President has complied with the remedial action. There are no time
frames set out by the Public
Protector nor the form of implementation
of the appropriate disciplinary action; and the President has
submitted his implementation
plan to the Public Protector stating
that he is deferring his decision to take disciplinary action pending
finalization of Minister
Gordhan’s review application.
[61] On the issue then of a
declarator, I am satisfied that the President has made out a case for
the relief sought
in the Notice of Motion
Points
in limine
[62]
A
s stated above,
the Public Protector has raised some points
in
limine
relating to
the
jurisdiction
of
this Court to deal with this matter on the issue of the declaratory
order
sought by the
President, as well as
non-joinder
of Pillay and Kieswetter to the proceedings
.
[63]
On the issue of
jurisdiction,
t
he
Public Protector contends that, the matter before this court falls
within the exclusive jurisdiction of the Constitutional Court
in
that, so contends the Public Protector, the President has not
complied with his Constitutional obligation in terms of Section
83 of
the Constitution. And to this the President correctly states
that this is just a simple issue where the President and
the Public
Protector and the EFF now as they have intervened as the third
respondents do not see things in the same way and hence
coming to the
court for a declarator. It has nothing to do with the President
not having fulfilled his Constitutional obligations
in terms of the
Constitution.
The
issue according to the Notice of Motion is whether the President has
complied with the Public Protector’s remedial action
contained
in the Public Protector’s report of 24 May 2019. The declarator
sought in this regard.
[64]
On the issue
of
non-joinder
of Pillay and Kieswetter,
the relief sought in this application concerns only the Minister
Gordhan; it does not in any way affect
Pillay and Kieswetter. This
much was conceded by Counsel for the Public Protector, i.e. that the
relief sought concerns only Minister
Gordhan. It was not
necessary for the President to join Pillay and Kieswetter in these
proceedings; unlike Minister Gordhan,
they have no interest
whatsoever in the outcome of these proceedings. T
his
matter purely has an impact on Minister Gordhan only.
The submission on behalf of the President that the Public Protector
is just being exceedingly technical is correct.
The
points
in
limine,
have
no merit
and
therefore cannot hold.
Costs
[65]
Insofar as the issue of
costs
are concerned it was argued on behalf of the Public Protector as well
as the EFF that the President is intimidating the Public
Protector by
stating that he would ask for costs on a punitive scale i.e. special
cost order.
I
n
a letter dated 29 July 2019 from the State Attorney to the
President’s legal representative
imploring the Public Protector to consent to the order sought in the
notice of motion in this matter
,
this is after my
sister Potterill J had given judgment in the matter between Minister
Gordhan and the Public Protector on the same
date, 29 July 2019,
favourably so for Minister Gordhan,
the Public Protector is informed at paragraph 2 thereof as follows:
“
2.
We request
the Public Protector to consent to the orders sought in paragraphs 1
to 3 of the Notice of Motion in our application,
alternatively
paragraph 4 of the notice of motion and an order for costs. Should
the Public Protector persist with her opposition
to the relief sought
in the urgent application, and decline to consent to any of the
orders sought,
we will obtain
instructions to pursue a special costs order.”
[My
underlining]
[66]
On a proper reading of the letter,
it is clear that when
the attorneys wrote that letter, the President had not at that stage
given them instructions to threaten or
intimidate the Public
Protector with a punitive cost order;
this
clearly implies that the State President had not instructed the State
Attorney to pursue a special cost order; the Public Protector
was
merely being cautioned by the President’s legal representatives
that if the Public Protector did not consent to the relief
sought
herein, they would
advise
their client, the President, to pursue a special cost order.
Mr
Mpofu for the Public Protector said in this court during argument
that I should pronounce on this issue of costs, and that is
specifically why I am mentioning this. It cannot be said from
the reading of that letter that the President was trying to
intimidate or was intimidating the Public Protector because the
letter is clear, at the time the President’s attorneys wrote
that letter they stated that
they
would advise their client to seek a special cost order.
It is important to note that counsel for the President did not pursue
the issue of costs at all. It is so that in the notice
of motion the
relief sought in prayer 5 is that any party that would be opposing
this application would be required to pay costs
on an attorney and
own client, this is what is stated in the notice of motion.
However, counsel for the President, as mentioned,
did not pursue that
during argument and he correctly left the issue of costs to the
court.
[67]
It is trite that the issue of costs is within the discretion of the
court and counsel for the President specifically
stated that he was
leaving the issue of costs to the Court; he did
not
persist with an order for costs on an attorney and client scale.
He left the issue to, of costs to the court. It
is trite that
the question of costs is a discretion of the court, which must be
exercised judicially. The award of costs
is to be decided on
the basis of fairness and equity. It is a general rule that
costs follow the results;
the successful
party is entitled to costs unless there are good reasons to depart
from such rule. There is no reason why this rule cannot
apply
here.
[68]
Both the Public Protector and the EFF’s counsel submitted that
in the event the application were to be successful
in this, the
Biowatch principle must apply. I have already stated insofar as
the Public Protector is concerned that it is
not understandable
really why she was opposing a stay of the remedial action pending the
finalization of Minister Gordhan’s
review application and
wanting the President to implement disciplinary action against
Minister Gordhan immediately. The EFF
as well was basically
being unreasonable to also want to demand that the President must
take disciplinary action immediately.
[69]
The Public Protector and the EFF were
unreasonable to oppose the application launched by the President,
seeking that the disciplinary
action must be immediately implemented
by the President, irrespective of the review application pending
before the Court. More
especially where the Public Protector has
recently, as already mentioned above, consented to suspension of the
Public Protector’s
remedial action in some matters, some of
which are mentioned hereabove [e.g. The Phumelela matter, the
President’s matter
mentioned above]. All persons are equal
before the law. Our Constitution is clear in this regard. There is no
reason to treat Minister
Gordhan differently by seeking that the
President implement the remedial action now while the review
application is pending, whereas
the Public Protector consented to the
suspension of her remedial action in the aforesaid matters pending
the review applications
of other parties.
[70]
I do not see that the justice would be served if the successful
parties were not to be granted an order for costs; and
I have already
indicated that I am satisfied on the papers, and having considered
the submissions made on behalf of all the parties
before this court
that the President has made out a case for the order sought in prayer
one (1) and prayers two (2) and three (3)
basically have to follow.
[71]
To sum up, the President has complied with the remedial action and as
indicated above, he has acknowledged and unequivocally
accepts,
correctly so, that the remedial action is binding on him. This is not
a case which can be compared to the EFF case where
the EFF sued the
Speaker of the National Assembly; that is now the Nkandla matter
supra
involving the erstwhile President Zuma who wanted to run a parallel
process in Parliament instead of implementing the remedial
action of
the Public Protector. In fact, he did not see himself bound by
the remedial action until the court in that matter
held that the
remedial action is binding; so the Nkandla case cannot in any way be
compared to this matter where the current President
correctly accepts
that he is bound by the remedial action, and he is not refusing to
implement it. He is just deferring implementing
the
disciplinary action, pending finalization of Minister Gordhan’s
review application.
[72]
In my considered view the President is acting rationally and
reasonably as I have already indicated pending the finalization
of
the review application by Minister Gordhan. And having said that and
on a consideration of all the facts I come to the conclusion
that the
President has made out a case for the relief sought. In so far as the
points in limine are concerned,
there
is no substance in the
points in
limine,
they
ought to be dismissed
.
ORDER
In
the result the following order is made:
The
points in
limine
are dismissed.
It
is declared that the President of the Republic of South Africa has
complied with the remedial action of the Public Protector
of South
Africa arising out of the investigation and report into allegations
of maladministration and impropriety in the approval
of Mr Ivan
Pillay’s early retirement with full pension benefits and
subsequent retention by the South African Revenue Services
bearing
reference number 24/2019/20 in that the President:
2.1 In compliance with
paragraph 7.1.1 of the Report, noted the adverse findings made in the
report against the second respondent
(Minister Gordhan); and
2.2 Within 30 days of
the issuing of the report and in compliance with paragraph 8.1 of the
report submitted and implementation
plan to the Public Protector
indicating how the remedial action in paragraph 7.1.1 of the report
will implemented (this is now
the implementation plan).
The
President is directed in accordance with the implementation plan and
subject to the decision of this court in the review application
under case number 36099/2019 (Minister Gordhan’s review
application), to take appropriate disciplinary action against the
Minister Gordhan within thirty (30) days from the date of the final
determination of the Minister’s review application.
The Public Protector (the first respondent)
and the Economic Freedom Fighters (third respondent) are ordered to
pay the costs
of this application jointly and severally the one
paying the other to be absolved such costs to include the costs
consequent
upon the employment of two counsel in respect of the
President and Minister Gordhan.
L M
MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
HEARD
ON:
01
August 2019
DATE OF
JUDGMENT:
08 August 2019
FOR
THE APPLICANT:
ADV: H
Maenetja S C.
ADV: R Tshetlo
.
INSTRUCTED
BY:
STATE ATTORNEY PRETORIA
FOR THE 1
st
RESPONDENTS: ADV: D C Mpofu S C
ADV: T Masuku S C
ADV: T Motloenyane
INSTRUCTED
BY:
SEANEGO ATTORNEY
FOR
THE 2
nd
RESPONDENT:
ADV: M Le Roux
ADV: O Mohlasedi
INSTRUCTED
BY:
MALATJI & KANYANE INC
FOR
THE 3
rd
RESPONDENT:
ADV: V Maleka S C
ADV: J Mitchell
ADV: K Premhid
INSTRUCTED
BY:
IAN LEVITT ATTORNEYS & CONVEYANCERS