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[2016] ZAGPPHC 921
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Minister of Home Affairs and Another v Public Protector of the Republic of South Africa and Another (76554/2013) [2016] ZAGPPHC 921; [2017] 1 All SA 239 (GP); 2017 (2) SA 597 (GP) (26 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
Reportable:
Yes
Revised.
CASE
NO: 76554/2013
DATE:
26/10/2016
IN
THE MATTER BETWEEN
MINISTER
OF HOME
AFFAIRS 1
ST
APPLICANT
DIRECTOR-GENERAL
OF THE DEPARTMENT
OF
HOME
AFFAIRS 2
ND
APPLICANT
AND
THE
PUBLIC PROTECTOR OF THE
REPUBLIC
OF SOUTH
AFRICA 1
ST
RESPONDENT
REGINALD
ANANIUS
MARIMI 2
ND
RESPONDENT
JUDGMENT
PRINSLOO,
J
[1]
The applicants seek an order reviewing and setting aside the final
report by the first respondent ("the Public Protector")
on
an investigation into certain alleged conduct of employees of the
Department of Home Affairs. The final report is dated
25 July
2013.
[2] In
the alternative, orders are sought to review and set aside certain
specific findings contained in the aforesaid final report.
There is also a prayer for declaratory relief to the effect that the
Public Protector acted
ultra vires
her powers in making the
findings and imposing the remedial actions contained in the report.
[3]
The applicants also seek a costs order.
[4]
The application is opposed by the Public Protector.
The
second respondent, the aggrieved official of the Department of Home
Affairs who asked the Public Protector to investigate the
matter,
played no active part in the proceedings.
[5]
Before me, Mr Mokhari SC, with Mr Platt, appeared for the
applicants and Mr Maleka SC, with Mr Ben Zeev,
appeared for the Public Protector.
Brief
notes about the somewhat unusual procedural journey travelled by this
case
[6]
The earlier, factual and procedural, chronology of events can be
summarised as follows:
• The events forming the subject of the Public Protector's
investigation, namely alleged misconduct by the second respondent
while officiating as First Secretary employed by the Department of
Home Affairs as a member of the South African Embassy in Cuba,
took
place in 2009.
• Other events central to the investigation, including exchanges
between the second respondent and officials of the Department
of Home
Affairs, took place mainly in 2010.
• The letter of complaint lodged by the second respondent with
the Public Protector, is dated 14 February 2011.
• As mentioned, the final report, which is the subject of the
attack on review, is dated 25 July 2013.
There was also a provisional report.
The final report was submitted to the first applicant (then the
Minister was Ms Pandor) and the second applicant (Mr Apleni,
who also deposed to the founding affidavit) in terms of the
provisions of section 8(1) of the Public Protector Act, no 23
of
1994 ("the
Public Protector Act"
;).
• A copy of the report was also provided to the second
respondent, Mr Marimi (the complainant).
• The review application was launched in December 2013.
[7] It
is appropriate to summarise more recent procedural developments:
• The application came before me on 13 February 2015.
Because one of the central issues in this case was the question
whether the findings and remedial actions of the Public Protector
were legally binding and, as such, reviewable by a court, or not, I
debated with counsel the findings of the learned Judge in
Democratic
Alliance v South African Broadcasting Corporation Ltd and Others
,
then already reported as 2015 1 SA 551 (WCC) to the effect, broadly
put, that the findings of the Public Protector were only
"recommendations", and the question whether my judgment
should be held in abeyance pending the final outcome of the aforesaid
case, by then the subject of an application for leave to appeal.
No conclusive arrangement was made, and the matter proceeded.
• Shortly after judgment was reserved following conclusion of
the proceedings before me, a new legal team representing the
Public
Prosecutor informed me that their client had written a letter
indicating that representations made on her behalf before
me to the
effect that she endorsed the argument that her findings and remedial
action only amounted to recommendations which were
not binding was
not in line with her personal views on the matter and also not in
line with what she had argued in another case.
I was informed
that the Public Prosecutor was abandoning the mentioned argument,
reaffirming her stance that her findings were
binding and reviewable,
but persisting with her opposition to the review application on the
substantive grounds on the "merits"
which had been advanced
on her behalf.
• I called for further submissions on the subject and both sides
filed written supplementary heads of argument. It was
submitted, correctly in my view, on behalf of the Public Prosecutor
that the abandonment of the argument in relation to the Public
Protector's powers had no impact on her continued opposition to the
substantive grounds of review. She was entitled to abandon
a
legal argument raised on her behalf and no prejudice was caused to
the applicants in the process.
• I was also informed that leave to appeal to the Supreme Court
of Appeal was granted by the learned Judge in the Western
Cape
Division on 23 April 2015. I ruled that my judgment
would be held in abeyance pending the outcome of those
appeal
proceedings.
• As it happened, the judgment in the appeal, reported as
South
African Broadcasting Corporation SOC Ltd and Others v Democratic
Alliance and Others
2016 2 SA 522 (SCA) was published in the
April 2016 Law Reports. Broadly, it was held that the findings
of the Public Protector
are binding and reviewable by a court.
• By then the "Nkandla case" reported as
Economic
Freedom Fighters v Speaker, National Assembly and Others
2016 3
SA 580 (CC) was due to be heard in the near future, and the final
word would be spoken on the nature of the powers of the
Public
Protector. Again, it was agreed in exchanges I had with both
sides that the judgment would be held in abeyance pending
the outcome
of the last-mentioned case. It was published in June 2016,
although the outcome was known before that.
When the result became known, I invited the parties to file further
written submissions which, in the end, they declined to do.
• Against this background, the judgment was prepared.
Brief
synopsis of the underlying circumstances leading to this litigation
[8]
During 2009 the second respondent, Mr Marimi, to whom I will also, at
times, refer as "the complainant" was employed
by the
Department of Home Affairs but attached to the South African Embassy
in Cuba as a First Secretary.
[9] On
17 February 2010, the Cuban Deputy Minister of Foreign Affairs called
the South African Ambassador to discuss certain alleged
serious
incidents in which the complainant and a Second Secretary had
allegedly been involved.
[10]
On 22 February 2010 the Cuban Ministry of Foreign Affairs (presumably
the aforesaid Deputy Minister) sent an
aide memoire
to the
South African Ambassador setting out certain details of the alleged
misconduct of the complainant and the Second Secretary.
[11]
Because the bulk of the misdemeanours appears to be attributed to the
Second Secretary, who is named in the
aide memoire
, I shall
refer to him only as "Secretary M" or "Mr M"
in order to protect his identity for present
purposes.
[12]
The following alleged misdemeanours are attributed to Secretary M in
the
aide memoire
:
• He "was the one responsible for a traffic accident on 29
November 2009, when he impacted from behind a car that stopped
at a
traffic light". The occupants of the car got out to
complain to the South African diplomat and when "no agreement
was reached" Secretary M drove on, dragging the aggrieved fellow
motorist on the hood of his car for several metres.
This event, in particular, had a strong social repercussion because
of a number of people who witnessed it.
• Documents from the National Revolutionary Police report an
incident involving Secretary M in the city of Cienfuegos to the
effect that Secretary M, who was in a state of intoxication,
insulted a group of citizens "throwing them a can of beer".
When Secretary M was spotted later on at a gas-station he refused to
show identification documents. He replied in a disrespectful
manner and insulted the two patrol officers who appeared on the
scene.
• On 8 June 2009 Secretary M, when he was stopped by the police
for having infringed the traffic laws during early morning
hours and
for driving his car in an irregular manner "with the car radio
extremely high" refused to show his documentation
to the
authority; and in 2009 Secretary M was involved in another traffic
accident about which there was no police intervention
as the involved
parties reached an understanding.
[13]
The
aide memoire
then goes on to list the alleged
transgressions of the First Secretary, the complainant:
• He was involved with Secretary M in the incident that took
place in Cienfuegos on 15 March 2009 and he has been involved
in
other serious traffic laws violations (no details are supplied).
• On another, "very dangerous occasion", he tried to
"go through an unauthorised area and he had to be detained
by
State Security agents" (again no details).
• "Last December 2009, this First Secretary attacked
physically and insulted in a disrespectful manner an Airport Customs
official".
[14]
So much for the alleged transgressions. Importantly for present
purposes, it is then stated in the
aide memoire
that, in
recognition of the excellent relations between the two countries, the
Cuban Foreign Ministry "had agreed that the
Deputy Minister
summon the Ambassador with all these elements and,
without
requesting him to get them out of the country or to declare them
personas non grata
, point out to him emphatically
that new incidents would not be tolerated" (emphasis added, for
reasons which will appear later).
[15]
In conclusion of the
aide memoire
, it is stated that incidents
such as those described affect in a negative manner the image of the
bilateral relations between the
two countries and the hope is
expressed that appropriate measures will be taken to prevent a
recurrence.
[16]
In her final report of 25 July 2013 ("the report" or "the
final report") the Public Protector states that
she received a
letter of complaint from the complainant on 14 February 2011 in
which she alleged that:
• On 26 April 2010 he received a letter from the Deputy
Director-General of Immigration Services, of the Department of Home
Affairs, informing him that the Department was in possession of
documentation which contained allegations of serious acts of
misconduct
against him whilst he was a transferred/diplomatic
official based in the South African Embassy in Cuba.
• The letter stated further that based on these allegations he
was withdrawn with immediate effect and he would be notified
of the
disciplinary steps that the Department would institute against him.
• The allegations were not investigated in terms of the Public
Service Co ordinating Bargaining Council ("PSCBC")
Resolution 1 of 2003: Disciplinary Code and Procedures.
• On 26 May 2010 he instructed his attorneys to write a letter
of enquiry to the Department to which there was no response.
On 26 July 2010 he, himself, wrote a letter to the Deputy
Director-General in which he raised concerns regarding the delay by
the Department to respond to his attorneys' enquiry and the fact that
he was not provided with a copy of the allegations levelled
against
him. Again there was no response.
• On 1 September 2010, he received a letter from one Mr Malaka
stating that the Department intended to institute disciplinary
action
against him and that he should respond within five working days why
disciplinary action should not be instituted against
him, to which he
responded on 2 September 2010. Nothing further was heard from
the Department.
It is convenient to quote extracts from the complainant's letter of
2 September 2010 in response to Mr Malaka's letter
of the
previous day:
"Firstly allow me to appreciate the opportunity afforded to me
to respond to the information received by the Department from
the
Department of International Relations regarding the allegations
levelled against me. I wish to raise the following
concerns with the Department.
1. The Department of Home Affairs took a unilateral decision to
recall me without following all procedures as stipulated in the
Labour Relations Act.
2. The Department of Home Affairs was issued with a letter from (the
name of the attorney acting for the complainant) on 26 May
2010
who was acting on my behalf (see attached copy) and no response was
given.
3. A letter of withdrawal was issued on 26 April 2010 but I was only
served with the letter of intent on 1 September 2010 (four
months and
five days) which to me was unfair as I lost certain benefits that was
due to me during that period.
4. The Department did not wait for the Ambassador's report or the
Department of International Relations before I was recalled.
The Department of International Relations was only informed a month
after the letter was given to me.
5. With regard to the intended allegations levelled against me,
kindly forward me with physical evidence so that I can be in the
position to respond to them.
It will be appreciated if my concerns are urgently addressed so that
one can be in a better position to answer to these allegations
as
well as to state the reasons why I should not be disciplined."
As I said, nothing further was heard from the Department.
• From May until December 2010 the complainant did not receive
USD 42 896 (R307 897,19 as per the exchange
rate then)
in allowances due to him from the Department.
• The Department acted unfairly against him for the following
reasons:
(i) the decision by the Department to withdraw him prior to a
procedurally fair disciplinary hearing was improper and a violation
of his constitutional right to fair labour practice;
(ii) the Department's decision to withhold the payment of his Cost of
Living Allowance ("COLA") on the basis of his withdrawal
was improper and prejudiced him; and
(iii) the Department failed to finalise the disciplinary proceedings
within a reasonable period of time so that his reputation
could be
cleared and the unresolved matter has resulted in prejudice to his
reputation.
[17]
This inspired the Public Protector to investigate the complaint in
terms of her powers as defined in the Constitution of the
Republic of
South Africa, 1996 ("the Constitution") and the
Public
Protector Act, no 23 of 1994
.
[18]
In terms of her powers, the Public Protector brought out a detailed
and lengthy provisional report which was dated 12 December
2012 which
she delivered to the Minister and the second applicant, calling for
their comments. The provisional report already
contained
details of her provisional findings and the remedial action she was
contemplating in terms of her powers as described
in
section
182(1)(
c) of the Constitution.
Lengthy
comments were received from the second applicant, and fully dealt
with in the final report of 25 July 2013.
The
Public Protector also had a personal meeting with the second
applicant on 30 January 2013. The minutes of that meeting
form
part of the record.
[19]
Apart from the meeting, details are stipulated in the final report of
key sources of information consulted by the Public Protector
during
the course of the preparation of her provisional and final reports:
there was correspondence with the complainant, correspondence
with
various officials in the Department of Home Affairs, correspondence
with various officials in the Department of Correctional
Services to
which the complainant was transferred at a later stage, voluminous
documents relating to the complaint in the form
of letters and e mail
correspondence between the complainant and the Department, the
Department of International Relations
and Co operation ("DIRCO")
and the Department of Home Affairs and correspondence between the
Public Protector and
DIRCO as well as the Department of Home Affairs.
She
also consulted legislation and other prescripts including the
Constitution, the Labour Relations Act 66 of 1995 ("the LRA"),
the Standard Contract of Placement in Foreign Mission used by the
Department of Home Affairs, the already mentioned PSCBC Resolution
1
of 2003: Disciplinary Code and Procedures as well as the Foreign
Service Dispensation of 2010. In addition, there was
correspondence between the complainant and the Department including
the letter which the complainant's attorney addressed to the
Department in May 2010.
[20]
The indexed record of proceedings supplied by the Public Protector,
as respondent in a review application, in terms of rule
53, runs into
more than 270 pages.
[21]
So much for the brief background synopsis.
Brief
references to the applicable legislation
(i)
The Constitution
[22]
These appear to be the relevant provisions of the Constitution for
present purposes:
• Section 2 stipulates that the Constitution is the supreme law
of the Republic and law or conduct inconsistent therewith
is invalid,
and the obligations imposed by it must be fulfilled.
• Section 23 stipulates that everyone has the right to fair
labour practices.
• The Public Protector is one of the Chapter 9 "state
institutions supporting constitutional democracy".
The Public Protector is the first of those state institutions that
"strengthen constitutional democracy in the Republic".
The Public Protector was established in terms of section 181(a) of
the Constitution. There are five other such institutions.
It is convenient to quote the remaining subsections of section 181:
"(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."
In the latter regard, it appears that the final report, in this
matter, was tabled in parliament.
• Section 182, under the heading "Functions of Public
Protector" deals with the Public Protector as the first of
these
Chapter 9 institutions. It does so in the following terms:
"(1) The Public Protector has the power, as regulated by
national legislation –
(a) to investigate any conduct in state affairs, or in the public
administration in any sphere of government, that is alleged or
suspected to be improper or to result in any impropriety or
prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action.
(2) The Public Protector has the additional powers and functions
prescribed by national legislation (
my note
: an obvious
reference to the
Public Protector Act).
>
(3) The Public Protector may not investigate court decisions.
(4) The Public Protector must be accessible to all persons and
communities.
(5) Any report issued by the Public Protector must be open to the
public unless exceptional circumstances, to be determined in
terms of
national legislation, require that a report be kept confidential."
In terms of
section 183
the Public Protector is appointed for a
non renewable period of seven years.
(ii)
The
Public Protector Act
[23
]
For the sake of brevity, I will attempt to deal briefly with extracts
of this Act which appear to me to be relevant for present
purposes:
• The long title stipulates that the Act is "to provide for
matters incidental to the office of the Public Protector
as
contemplated in the Constitution, and to provide for matters
connected therewith".
• In this regard, the preamble specifically refers to the
provisions of sections 181 to 183 of the Constitution. There
is
also a reference, in the preamble, to sections 193 and 194 of the
Constitution, dealing with the appointment and removal from
office of
the Public Protector. This is not applicable for present
purposes.
• Section 5, under the heading "
Liability of Public
Protector
", stipulates:
"(1) The office of the Public Protector shall be a juristic
person.
(2) The State Liability Act, 1957 (Act 20 of 1957), shall apply with
the necessary changes in respect of the office of the Public
Protector, and in such application the reference in that Act to
'the Minister of the Department concerned' shall be construed
as
a reference to the Public Protector in his or her official capacity.
(3) Neither a member of the office of the Public Protector nor the
office of the Public Protector shall be liable in respect of
anything
reflected in any report, finding, point of view or recommendation
made or expressed in good faith and submitted to parliament
or made
known in terms of this Act or the Constitution."
• Section 6 under the heading "
Reporting matters to and
additional powers of Public Protector
", is a lengthy
provision. I will attempt to condense references thereto as far
as is practicable.
• Section 6(1) stipulates that the complaint submitted to the
Public Protector must be by means of a written or oral declaration
under oath or after having made an affirmation specifying the nature
of the matter in question and the grounds for the complaint.
Section 6(1)(b) stipulates in the alternative that the complaint may
be made by any other means that the Public Protector may allow
with a
view to making his or her office accessible to all persons (
my note
:
a complaint offered by the applicants to the effect that the
process was flawed because the complaint letter was not under
oath,
has no merit: the Public Protector clearly has a discretion to allow
the complaint to be made by such other means that she
may consider
appropriate).
• In terms of section 6(3) "the Public Protector
may
refuse
(my emphasis) 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."
(
My note
: there is no merit, in my view, in an argument
offered by the applicants to the effect that the investigation was
premature because
the complainant had not exhausted all his remedies
in terms of the Public Service Act before approaching the Public
Protector:
it is clear from the provision that the Public Protector
may refuse
(
my emphasis
) to investigate a matter under
such circumstances that she has a discretion and that the provision
is not couched in mandatory
language. In any event, it appears
that the complainant made diligent efforts by entering into
correspondence with the Department,
personally and through his
attorney, as illustrated, without any meaningful response thereto.)
• Section 6(4) provides:
"(4) The Public Protector shall, be competent –
(a) to investigate, on his or her own initiative or on receipt of a
complaint, any alleged –
(i) maladministration in connection with the affairs of government at
any level;
(ii) abuse or unjustifiable exercise of power or unfair, capricious,
discourteous or other improper conduct or undue delay by a
person
performing a public function;
(iii) ...
(iv) ...
(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."
• Section 6(4)(b) makes provision for the Public Protector, in
her sole discretion, to resolve disputes by way of mediation,
conciliation or negotiation or to adopt other steps to achieve such
resolution. This is not strictly applicable for present
purposes.
• The same applies to sections 6(4)(c) and (d) and also
subsections (5), (6), (7), (8) and (9).
• Section 7 deals with the investigation as such which may be
conducted by the Public Protector and there is also provision
for a
preliminary investigation to be conducted for the purpose of
determining the merits of the complaint. In this case,
as I
mentioned, a provisional report was also brought out.
There is clear provision, in section 7(1)(b)(i) that 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. I need not dwell any further
on
these provisions, and the same applies to the provisions of section
7A.
• Section 8 provides for the publication of the findings of the
Public Protector, including reports to the National Assembly
and
tabling of the findings of a particular investigation.
• I need not deal with sections 9, 10 and 11, or 14 and 15.
• Section 13, under the heading "
Application of Act
"
stipulates:
"The provisions of this Act shall not affect any investigation
under, or the performance or exercise of any duty or power
imposed or
conferred by or under, any law."
The
findings and remedial measures taken by the Public Protector are
binding, and in a proper case, reviewable by a court
[24]
In
South African Broadcasting Corporation SOC Ltd and Others v
Democratic Alliance and Others ("SABC v DA")
2016 2 SA
522
(SCA) the following is said at 547G 548D (only extracts are
quoted):
"If indeed it were aggrieved by any aspect of the Public
Protector's report, its remedy was to challenge that by way of a
review ... thus, absent a review, once the Public Protector had
finally spoken, the SABC was obliged to implement her findings
and
remedial measures."
[25]
At 552H-553C the following is said:
"To sum up, the office of the Public Protector, like all Chapter
9 institutions, is a venerable one. Our constitutional
compact
demands that remedial action taken by the Public Protector should not
be ignored. State institutions are obliged
to heed the
principles of co operative governance as prescribed by section
41 of the Constitution. Any affected person
or institution
aggrieved by a finding, decision or action taken by the Public
Protector might, in appropriate circumstances, challenge
that by way
of a review application. Absent a review application, however,
such person is not entitled to simply ignore the
findings, decision
or remedial action taken by the Public Protector. Moreover, an
individual or body affected by any finding,
decision or remedial
action taken by the Public Protector is not entitled to embark on a
parallel investigation process to that
of the Public Protector, and
adopt the position that the outcome of that parallel process trumps
the findings, decision or remedial
action taken by the Public
Protector. A mere power of recommendation of the kind suggested
by the High Court appears to be
more consistent with the language of
the interim Constitution and is neither fitting nor effective,
denudes the office of the Public
Protector of any meaningful content,
and defeats its purpose ... Before us, all the parties were
agreed that a useful metaphor
for the Public Protector was that of a
watch-dog. As is evident from what is set out above, this
watch-dog should not be
muzzled."
[26]
In
Economic Freedom Fighters v Speaker, National Assembly and
Others
2016 3 SA 580
(CC) ("
EFF v Speaker
") the
following is said at 606D-F:
"The power to take remedial action is primarily sourced from the
supreme law itself. And the powers and functions conferred
on
the Public Protector by the Act owe their very existence or
significance to the Constitution. Just as roots do not owe
their life to branches, so are the powers provided by national
legislation incapable of eviscerating their constitutional forebears
into operational obscurity. The contention that regard must
only be had to the remedial powers of the Public Protector in
the Act
and that her powers in the Constitution have somehow been mortified
or are subsumed under the
Public Protector Act, lacks
merit. To
uphold it would have the same effect as 'the tail wagging the dog'."
[27]
At 610E-G, the learned Chief Justice says:
"This is so because our constitutional order hinges also on the
rule of law. No decision grounded in the Constitution
or law
may be disregarded without recourse to a court of law. To do
otherwise would 'amount to a licence to self-help'.
Whether
the Public Protector's decisions amount to administrative action or
not
, the disregard for remedial action by those adversely
affected by it amounts to taking the law into their own hands and is
illegal.
No binding and constitutionally or statutorily sourced
decision may be disregarded willy-nilly. It has legal
consequences
and must be complied with or acted upon. To
achieve the opposite outcome lawfully, an order of court would have
to be obtained."
(Emphasis added, this subject of
administrative action will be revisited later.)
[28]
At 611C-D, the learned Chief Justice states:
"Our foundational value of the rule of law demands of us, as law
abiding people, to obey decisions made by those clothed with
the
legal authority to make them or else approach courts of law to set
them aside, so we may validly escape their binding force."
[29] I
add, simply for the sake of detail, but not considering this to be
applicable for present purposes, that the learned Chief
Justice
pointed out that, in certain instances, the legal effect of the
appropriate remedial action may not be binding in the true
sense of
the word. He states, at 608D-F:
"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. As common sense and
section 6
of the
Public Protector Act suggests
, mediation,
conciliation or negotiation may at times be the way to go.
Advice considered appropriate to secure a suitable
remedy might,
occasionally, be the only real option. And so might
recommending litigation or a referral of the matter to
the relevant
public authority, or any other suitable recommendation, as the case
might be. The legal effect of these remedial
measures may
simply be that those to whom they are directed are to consider them
properly, with due regard to the nature, context
and language, to
determine what course to follow."
[30]
In the result, and subject to the last-mentioned remarks, I have to
conclude, as I do, that the findings of the Public Prosecutor
in this
particular matter, and the remedial action she decreed, are binding
unless set aside in this review application.
[31]
It also follows, that arguments to the contrary offered in the Public
Protector's answering affidavit and the heads of argument
of her
counsel appearing before me, which arguments the Public Protector in
any event abandoned, as explained earlier, fall to
be rejected.
Do
the decisions of the Public Protector amount to administrative action
as intended by the provisions of the Promotion of Administrative
Justice Act, 3 of 2000 ("PAJA")?
[32]
It stands to reason that this question will not apply to those
decisions of the Public Protector which are mere recommendations,
as
explained by the learned Chief Justice,
supra
.
[33]
Before me, it was argued on behalf of the applicants that the
provisions of PAJA do come into play in this case. The
contrary
was argued on behalf of the Public Protector. This stance may
be affected by the later abandonment of the argument
by the Public
Protector that her decisions are not binding.
[34] I
could not find a clear answer in
EFF v Speaker
to the question
as to whether or not the decisions of the Public Protector amount to
administrative action in the particular sense
of the word. The
closest I could find was the words, already quoted, at 610E F
that "Whether the Public Protector's
decisions amount to
administrative action or not, the disregard for remedial action by
those adversely affected by it amounts to
taking the law into their
own hands and is illegal ..."
[35] I
have mentioned the words of the learned Judges of Appeal in
SABC v
DA
at 552H J to the effect that "Any affected person or
institution aggrieved by a finding, decision or action taken by the
Public Protector might, in appropriate circumstances, challenge that
by way of a review application ..."
[36]
It does, however, appear, if I understood the judgment correctly,
that the learned Judges of Appeal considered the decisions
of the
Public Protector to amount to administrative action. They state
the following at 546C G:
"Regarding the first consideration, (
my note
: comparing
the powers of the Public Protector with that of a court) it is so
that section 165(5) of the Constitution provides:
'An order or
decision
by a court
binds all persons to whom and organs of
state to which it applies' (our emphasis). But the court is an
inaccurate comparator
and the phrase 'binding and enforceable' is
terminologically inapt and in this context conduces to confusion.
For it 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 and cannot simply be overlooked (
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 6 SA 222
(SCA) ...) It was submitted, however, that that principle
applies only to the decision of an administrative functionary or
body, which the Public Protector is not. It suffices for
present purposes to state that if such a principle finds application
in the decisions of an administrative functionary, then, given the
unique position that the Public Protector occupies in our
constitutional
order, it must apply with at least equal or perhaps
even greater force to the decisions finally arrived at by that
institution.
After all, the
rationale
for the principle
in the administrative-law context (namely, that the proper
functioning of a modern state would be considerably
compromised if an
administrative act could be given effect to or ignored, depending
upon the view the subject takes of the validity
of the act in
question (
Oudekraal
paragraph 26)), would at least apply as
much to the institution of the Public Protector and to the
conclusions contained in her
published reports."
[37]
In
Public Protector v Mail and Guardian Ltd and Others
2011 4
SA 420
(SCA) the learned Judge of Appeal, with respect, appears to
adopt a more robust and pragmatic approach to the subject at 426A-C:
"There is no dispute in this case that an investigation and
report of the Public Protector is subject to review by a court.
I do not find it necessary to pronounce upon the threshold that will
need to be overcome before the work of the Public Protector
will be
set aside on review. It would be invidious for a court to mark
the work of the Public Protector as if it were marking
an academic
essay. But I think there is none the less at least one feature
of an investigation that must always exist –
because it is one
that is universal and indispensable to an investigation of any kind –
which is that the investigation must
have been conducted with an open
and enquiring mind. An investigation that is not conducted with
an open and enquiring mind
is no investigation at all. That is
the benchmark against which I have assessed the investigation in this
case."
[38]
In terms of section 5(1) and
section 5(2)
of the
Public Protector
Act, the
office of the Public Protector shall be a juristic person,
and the
State Liability Act shall
apply with the necessary changes in
respect of the office of the Public Protector, and in such
application a reference in that
Act to "the Minister of the
Department concerned" shall be construed as a reference to the
Public Protector in his or
her official capacity.
From
this it appears, on a general reading of these provisions, that the
Public Protector enjoys a status equal, at least, to that
of a
Minister.
[39]
An "organ of state" is defined as follows in section 239 of
the Constitution:
"(a) Any department of state or administration in the national,
provincial or local sphere of government; or
(b) any other functionary or institution –
(i) exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in
terms of any legislation;
but does not include a court or a judicial officer."
[40]
It seems to me that the Public Protector, performing her functions in
terms of the Constitution and the
Public Protector Act can
properly
be described as an organ of state in that sense.
I am
not aware of any specific pronouncement on this question by another
court, neither was I referred to such.
It is,
with respect, not clear to me exactly how to interpret the words of
the two learned Judges of Appeal in
SABC v DA
at 546D-G
(already quoted, but revisited for the sake of convenience) when they
say -
"It was submitted, however, that that principle (
my note
:
that until a decision is set aside by a court in proceedings for
judicial review it exists in fact and has legal consequences)
applies
only to the decision of an administrative functionary or body,
which
the Public Protector is not
. It suffices for present
purposes to state that
if such a principle finds application in
the decisions of an administrative functionary
, then, given the
unique position that the Public Protector occupies in our
constitutional order, it must apply with at least equal
or perhaps
even greater force to the decisions finally arrived at by that
institution. After all, the
rationale
for the principle
in the administrative law context (namely, that the proper
functioning of a modern state would be considerably
compromised if an
administrative act could be given effect to or ignored, depending
upon the view the subject takes of the validity
of the act in
question (
Oudekraal
paragraph 26)), would at least apply as
much to the institution of the Public Protector and to the
conclusions contained in her
published reports." (Emphasis
added.)
It is
not clear to me whether the learned Judges found that the Public
Protector is not an administrative functionary or only considered
a
submission to that effect. Either way, it appears that they
pronounced the decisions finally arrived at by the Public Protector
to be at least akin to those of an administrative functionary.
As far as I can gather, they did not pronounce on the question
as to
whether or not the Public Protector is an organ of state in the
spirit of section 239 of the Constitution.
[41] I
turn to the PAJA definition, in section 1, of administrative action:
"'
Administrative action
' means any decision taken, or any
failure to take a decision, by –
(a) an organ of state, when –
(i) exercising a power in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or performing a public function in
terms of any legislation; or
(b) a natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function
in terms of
an empowering provision, which adversely affects the rights of any
person and which has a direct, external legal effect,
but does not
include – " (then follows a number of exclusions which, in
my view, do not apply for present purposes).
[42]
If I am wrong in my conclusion that the Public Protector is an organ
of state, then, at least, she is a juristic person (having
been
pronounced to be one in mandatory terms by
section 5(1)
of the
Public
Protector Act and
having been placed in the position of the Minister
by
section 5(2))
"when exercising a public power or performing a
public function in terms of an empowering provision".
[43]
What does cause some uncertainty, is whether the Public Protector's
actions can, after all, be classified as "administrative
action"
in the spirit of PAJA if they are required, in order to fall inside
that definition, to "adversely affect the
rights of any person
and which has a direct, external legal effect".
At
first blush, one is not inclined to see the actions of the Public
Protector as adversely affecting the rights of any person,
although
they certainly have been recognised, in view of the authorities
quoted, as having a "direct, external legal effect".
[44]
In
Minister of Defence and Military Veterans v Motau and Others
("
Motau
")
2014 5 SA 69
(CC) there is a lengthy
discussion about the concept of "administrative action" as
defined in PAJA from 82F 86E.
However,
only certain elements of administrative action namely whether the
actions of the Minister in that case was of an administrative
nature
and whether the action fell under any of the listed exclusions came
up for specific consideration. The elements of
adversely
affecting rights and a direct external legal effect were not dealt
with.
What
is plain, is that it appears from the judgment, at 83C E, that a
court considering an application of this nature is obliged
to make a
"positive decision in each case whether a particular exercise of
public power ... is of an administrative character".
In this regard, the learned Judge refers to
Sokhela and
others v MEC for Agricultural and Environmental Affairs (Kwa-Zulu
Natal) and Others
2010 5 SA 574
(KZP) at paragraph [60].
Broadly
speaking, it appears that executive actions are, in essence,
high-policy or broad direction-giving powers which would generally
include the formulation of policy whereas administrative action is
"the conduct of the bureauracy in carrying out the daily
functions of the state, which necessarily involves the application of
policy, usually after its translation into law, with direct
and
immediate consequences for individuals or groups of individuals"
–
Motau
at 84B-E.
The
observation of the learned Judge, at 85C-E, that "while
administrative powers more commonly flow from legislation, PAJA's
definition of 'administrative action' expressly contemplates that the
administrative power of organs of state may derive from a
number of
sources, including the Constitution" appear to be in complete
harmony with the position of the Public Protector.
[45] I
revisit the concern which I have raised namely that, judging by the
definition, administrative action must "adversely
affect the
rights of any person" before it can be classified as such in the
spirit of the PAJA definition. After all,
the actions of the
Public Protector are generally considered not to have this
unfortunate result.
The
answer may be contained in the following remarks of the learned Judge
of Appeal in
Grey's Marine Hout Bay (Pty) Ltd and Others v
Minister of Public Works and Others
[2005] ZASCA 43
;
2005 6 SA 313
(SCA) at
323D-F:
"While PAJA's definition purports to restrict administrative
action to decisions that, as a fact, 'adversely affect the rights
of
any person', I do not think that literal meaning could have been
intended. For administrative action to be characterised
by its
effect in particular cases (either beneficial or adverse) seems to me
to be paradoxical and also finds no support from the
construction
that has until now been placed on section 33 of the Constitution.
Moreover, that literal construction would
be inconsonant with section
3(1), which envisages that administrative action might or might not
affect rights adversely.
The qualification,
particularly when seen in conjunction with the requirement that it
must have a 'direct and external legal effect',
was probably intended
rather to convey that administrative action is action that has the
capacity to affect legal rights, the two
qualifications in tandom
serving to emphasise that administrative action impacts directly and
immediately on individuals."
• Section 33 of the Constitution referred to by the learned
Judge, in section 33(1), stipulates that "everyone has the
right
to administrative action that is lawful, reasonable and procedurally
fair"; and
• Section 3(1) of PAJA, mentioned by the learned Judge provides:
"Administrative action which materially and adversely affects
the rights or legitimate expectations of any person must be
procedurally fair."
[46]
From the aforegoing, I understand the learned Judge of Appeal to have
held that the PAJA definition was not intended to restrict
administrative action to decisions that, as a fact, "adversely
affect the rights of any person". The two qualifications,
referred to, were intended rather to convey that administrative
action is action that has the capacity to affect legal rights.
There appears to be emphasis on the fact that administrative action
impacts directly and immediately on individuals.
On
this particular subject, the central issue appears to be (as also
alluded to by the learned Judge of Appeal, but from a slightly
different angle), that administrative action which materially and
adversely affects the rights or legitimate expectations of any
person
must be procedurally fair – section 3(1) of PAJA.
These
conclusions appear to be in harmony with what one generally expects
from the Public Protector (a state institution supporting
constitutional democracy – section 181(1) of the Constitution)
namely generally achieving positive results for all concerned
rather
than adversely affecting the rights of any person. However, if
the latter were to become a reality, the action taken
by the Public
Protector must be procedurally fair.
[47]
Against this background, I have come to the conclusions, and I find,
that –
(1) As a general proposition, the decisions and actions of the Public
Protector amount to administrative action as intended by
PAJA.
(2) If I am wrong in this conclusion, the decisions of the Public
Protector amount to something akin to administrative action,
a la
SABC v the DA
.
(3) Either way, the actions and decisions of the Public Protector
can, in a proper case, be challenged in terms of PAJA, as was
done in
this case by the applicants. Where appropriate, there will also
be room for a so called "legality review"
if it is
alleged that the Public Protector exercised powers and performed
functions beyond that conferred upon her by law –
see, for
example,
Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others
1999 1
SA 374
(CC) at 400D G.
More
about the Public Protector's final report: issues selected by her for
decision and her findings after considering responses
received from
the applicants
[48]
The final report is a lengthy, comprehensive, well crafted and
detailed affair running into some 46 pages, and 100 pages
if the
annexures are included.
The
final report was, as I have mentioned, preceded by a provisional
report. This was an equally detailed document, presenting
the
applicants and other recipients thereof with a clear picture of the
findings which the Public Protector was considering to
make and
inviting those affected to furnish comments, which they duly did.
In line with the statutory requirements, proper
notice was given to
all concerned and the reports were tabled in parliament.
[49]
In this regard, I consider it appropriate to remark, at the outset,
that I am satisfied, at least on the overwhelming probabilities,
that, judging by the quality of the reports and other aspects of the
investigation mounted by the Public Protector, her investigation
was
clearly "conducted with an open and enquiring mind" which
appears to be the main feature of the investigation required
by the
learned Judge of Appeal in
Mail and Guardian
at 426A C,
already quoted above, for the work of the Public Protector to pass
muster and to avoid being set aside on review.
[50]
The report, under the heading "unjust forfeiture" is one in
terms of section 182(1)(b) of the Constitution and
section 8(1)
of
the
Public Protector Act.
[51
]
In terms of section 182(1)(a) of the Constitution (already mentioned)
the Public Protector has the power, as regulated by national
legislation, to investigate any conduct in state affairs, or in the
public administration in any sphere of government, that is
alleged or
suspected to be improper or to result in any impropriety
or prejudice.
In
terms of
section 6(4)
of the
Public Protector Act, the
Public
Protector shall be competent to investigate, on her own initiative or
on receipt of a complaint, any alleged maladministration
in
connection with the affairs of government at any level, and any
alleged abuse or unjustifiable exercise of power or unfair,
capricious, discourteous or other improper conduct or undue delay by
any person performing a public function. There are other
powers
too.
[52]
In terms of the provisions of
section 7(1)(b)
of the
Public Protector
Act, the
format and the procedure to be followed in conducting any
investigation shall be determined by her with due regard to the
circumstances
of each case.
[53]
In the introduction to the report, it is stated that it communicates
the Public Protector's findings and directives on appropriate
remedial action following her investigation into a complaint lodged
by Mr Marini, the second respondent, on 14 February 2011 alleging
improper prejudice suffered as a result of the decision of the
Department of Home Affairs to withdraw him from a posting at the
Cuban Foreign Mission in April 2010, based on allegations of acts of
misconduct in Cuba.
"The alleged maladministration involved the Department's failure
to afford him an opportunity to answer to the allegations
against him
before the decision to withdraw him was made, the Department's
failure to institute a disciplinary hearing against
him regarding
those allegations subsequent to his return to South Africa and the
withdrawal of his Cost of Living Allowance (COLA),
(estimated to be
USD 42 896), which he was entitled to as a designated official
posted in Cuba."
[54]
According to what is stated in the introduction to the report, the
Public Protector considered and investigated the following
issues:
"(a) Did the Department withdraw the complainant from a foreign
posting in Cuba and was such withdrawal procedurally flawed
and
improper?
(b) Was the delay by the Department to hold a disciplinary hearing to
deal with the allegations against the complainant prior to
his
resignation unreasonable and improper? (
My note
: the
"resignation" referred to appears to be the transfer to the
Department of Correctional Services.)
(c) Was the Department's decision to withhold the complainant's Cost
of Living Allowance due to him by virtue of being posted at
the Cuban
Foreign Mission after withdrawing him improper?
(d) If the answer to any of the above issues is in the affirmative,
was the complainant prejudiced as envisaged in
section 6(4)(a)(v)
of
the
Public Protector Act?"
[55
]
Section 6(4)(a)(v)
of the
Public Protector Act provides
:
"The Public Protector shall, be competent –
(a) to investigate, on his or her own initiative or on receipt of a
complaint, any alleged –
(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."
[56] I
turn to the Public Protector's response, in the report, to certain
arguments raised by the applicants questioning her jurisdiction
to
investigate this particular complaint.
Public
Protector's response to arguments about her jurisdiction
[57]
The applicants challenged the jurisdiction of the Public Protector to
investigate this complaint on two grounds:
• The Public Protector does not have the necessary jurisdiction
to investigate an unfair labour practice complaint which ought
to be
dealt with in terms of the
Labour Relations Act of 1995
. The
Public Protector acted
ultra vires
the enabling legislation,
being the Constitution and the
Public Protector Act. Her
action
in this regard is tainted with illegality so that her findings fall
to be set aside. This appears to be a so-called
"legality
review" as referred to.
The Public Protector responded to this argument by remarking that the
provisions of the
Labour Relations Act are
subject to the
Constitution. She relied on section 182(1) of the Constitution
which provides, as I already pointed out, that
the Public Protector
has the power, as regulated by national legislation to investigate
any
conduct in state affairs, or in the public administration
in
any
sphere of government that is alleged or suspected to be
improper or to result in any impropriety or prejudice. She also
has
the power to take appropriate remedial action as stipulated in
section 182(1)(c) of the Constitution. (Emphasis added.)
She also has additional powers as prescribed by national legislation
(in this case the
Public Protector Act). Here
it is useful to
revisit the provisions of
section 6(4)(a)
of the
Public Protector Act
which
stipulates that the Public Protector is competent to
investigate, on her own initiative or on receipt of a complaint,
any
alleged maladministration in connection with the affairs of
government at
any
level as well as
any
alleged abuse or
unjustifiable exercise of power or unfair, capricious, discourteous
or other improper conduct or undue delay by
a person performing a
public function. (Emphasis added.)
In her report, the Public Protector argues that the authority relied
upon by the applicants,
Gcaba v Minister for Safety and Security
and Others
2010 1 SA 238
(CC) has to do with a comparison of the
jurisdiction of the High Court and Labour Court when it comes to
so-called labour matters,
concurrent jurisdiction in certain areas
and exclusive jurisdiction of the Labour Court in other areas.
It has nothing to
do with the jurisdiction of the Public Protector as
ordained by the Constitution itself and the
Public Protector Act.
I
find myself in respectful agreement with this approach.
The powers of the Public Protector are extremely wide and she
is
competent to investigate
any conduct
in state affairs or in
the public administration
in any sphere of government
(emphasis added). The powers are extended even further in terms
of
section 6
of the
Public Protector Act. There
is no provision
in the Constitution or the
Public Protector Act to
the effect that
the Public Protector's powers, as circumscribed, fall to be excluded
in certain instances, such as where the Labour
Court has exclusive
jurisdiction when compared with the jurisdiction of the High Court.
To argue otherwise, would lead to
a situation where the powers of the
Public Protector are severely curtailed and arguments that particular
alleged maladministration
or misconduct fall inside the jurisdiction
of a certain court rather than that of the Public Protector, despite
the wide powers
ordained by the Constitution.
Finally, I add that the applicants did not rely, before me, on the
provisions of
section 13
of the
Public Protector Act which
, as I
mentioned, stipulates that the provisions of that Act shall not
affect any investigation under, or the performance or exercise
of any
duty or power imposed or conferred by or under, any law. In my
view this does not amount to an ouster of jurisdiction
and a
curtailment of the wide powers of the Public Protector which she
enjoys in terms of the constitutional and other legislative
provisions.
I am consequently of the view that there is no merit in the argument
that the Public Protector acted beyond the scope of her powers
by not
paying deference to the provisions of the
Labour Relations Act.
Indeed
, when making out a case for improper conduct in her report,
the Public Protector referred to the
Labour Relations Act on
a number
of occasions.
• The remaining attack by the applicants on the jurisdiction of
the Public Protector is based on the provisions of
section 6(3)
of
the
Public Protector Act, to
the effect that she
may refuse
(my emphasis) to investigate a matter where the complainant has not
taken all reasonable steps to exhaust the remedies conferred
upon him
or her in terms of the Public Service Act, and also other legislation
referred to in section 6(4) and 6(5).
The Public Protector responded, in my view correctly, that the
provisions of section 6(3) are not couched in mandatory terms.
She has a discretion whether or not to refuse to investigate if other
internal remedies have not been exhausted. She states
in her
report that, upon assessment of this complaint, it was clear to her
that there was a
prima facie
case of alleged maladministration
and for that reason she decided to investigate the matter in terms of
her wide powers, for example
those stipulated in
section 6(4)(a)
of
the
Public Protector Act and
, no doubt, section 182 of the
Constitution.
Again, I find myself in respectful agreement with this approach.
The
findings of the Public Protector
[58]
In leading up to these findings, the Public Protector, in her report,
dealt with the relevant issues, documentation and arguments
offered
by the applicants in compelling terms.
[59]
What is plain, is that the Public Protector, in the course of her
report, meticulously analysed and considered all the arguments
and
counter-arguments. She studied the relevant documentation and
pronounced thereon. I consider it unnecessary, for
present
purposes, to analyse all the arguments and observations and
documentation and to embark upon unnecessary repetition.
[60]
It is clear that the Public Protector properly applied her mind to
all the issues and, inasmuch as it may be necessary to pronounce
upon
the so called "merits" when adjudicating upon a review
application against the decision of an administrative
functionary, a
subject which I will deal with later in this judgment, I am unable to
criticise any of the findings.
[61]
What is also patently clear, as I have already suggested earlier, is
that the Public Protector conducted this investigation
"with an
open and enquiring mind", in the words of the learned Judge of
Appeal in
Mail and Guardian
at 426A-C.
[62]
For the sake of detail, I proceed to quote the findings as they
appear in the conclusionary portion of the final report:
"10.1
Did the Department withdraw the Complainant from a
foreign posting in Cuba and was such withdrawal procedurally flawed
and improper?
10.1.1 The Department withdrew the Complainant from a foreign
posting in Cuba on the basis of allegations of misconduct against
him.
10.1.2 The withdrawal was in violation of clause 5.3 of its
contract with him, which required that he be withdrawn on the
recommendation of the host country or the Head of the Mission (
my
note
: there was no evidence to the effect that such a
recommendation was made. Indeed, the opposite was suggested in
the
aide memoire
which I dealt with at the beginning of this
judgment with the Cuban Foreign Minister stating that it had been
agreed that the Ambassador
would be summoned 'with all these
elements and, without requesting him to get them out of the country
or to declare them
personas non grata
, point out to him
emphatically that new incidents would not be tolerated').
10.1.3 The conduct of the Department was improper as envisaged
in section 182(1)(a) of the Constitution and constitutes
maladministration in terms of
section 6(4)(a)(i)
of the
Public
Protector Act;
10.2
Was
the delay by the Department to hold a disciplinary
hearing to deal with the allegations against the Complainant prior to
his resignation
unreasonable and improper?
10.2.1 The Department delayed to hold a disciplinary hearing to
deal with allegations of misconduct against the Complainant
(
my note
:
indeed, it is common cause that no disciplinary hearing ever took
place).
10.2.2 The delay was in violation of paragraph 7.2(c) of the
Public Service Disciplinary Code and Procedures which requires
that a
disciplinary hearing be held within a maximum period of 60 days.
10.2.3 The delay was unreasonable and improper as envisaged in
section 182(1)(a) of the Constitution and constitutes
maladministration
in terms of
section 6(4)(a)(i)
of the
Public
Protector Act.
10.3
Was
the Department's decision to withhold the Complainant's
Cost of Living Allowance due to him by virtue of being posted at the
Cuban
Foreign Mission after withdrawing him improper?
10.3.1 The Department withheld the Complainant's Cost of Living
Allowance (COLA) due to him by virtue of being posted at
the Cuban
Foreign Mission after withdrawing him.
10.3.2 The Department's decision to withhold the Complainant's
cost of living allowance due to allegations of misconduct
against him
contravened paragraph 6.2.1(iii) (COLA) of the Foreign Service
Dispensation read with the DPSA letter dated 22/02/2006,
which
provides that an official who is recalled due to a Labour Relations
action he/she is regarded as being on official duty and
hence is
entitled to be paid the appropriate percentage of COLA.
10.3.3 The conduct of the Department in withholding the
Complainant's COLA after withdrawing him due to allegations of
misconduct
against him was improper as envisaged in section 182(1)(a)
of the Constitution and constitutes maladministration in terms of
section 6(4)(a)(i)
of the
Public Protector Act; and
10.4
Was the Complainant prejudiced as envisaged in
section
6(4)(a)(v)
of the
Public Protector Act by
the Department's decision
to withdraw him from the Cuban Foreign Mission, the delay in holding
a disciplinary hearing against him
regarding allegations of
misconduct in Cuba and the withholding of his COLA due to him by
virtue of being posted at a Foreign Mission?
10.4.1 The Complainant suffered an injustice or prejudice as
envisaged in
section 6(4)(a)(v)
of the
Public Protector Act; in
that
10.4.1.1 he was treated unfairly;
10.4.1.2 he unfairly lost his Cost of Living Allowance that he was
legally entitled to;
10.4.1.3 his name and reputation remained tarnished due to the
failure to afford him an opportunity to clear his name; and
10.4.1.4 his human dignity was impaired."
Remedial
action
[63]
In terms of the powers conferred upon her by section 182(1)(c) of the
Constitution, the Public Protector took the following
remedial
action:
"11.1 The Director-General of the Department should ensure that
the complainant's allowances which accrued to him in terms
of his
contract of placement in the Cuban Foreign Mission entered into with
the Department, is paid to him together with interest
at the
prescribed rate of 15,5% per annum from the date of his withdrawal
from Cuba until the date he transferred to Correctional
Services;
11.2 The Director-General of the Department should investigate the
reasons why the case was not dealt with properly and take the
necessary action against any person who may have failed to act as
required by law and policy; and
11.3 The Director-General of the Department should ensure that the
complainant is provided with a letter of apology for the prejudice
he
suffered as a result of the conduct of the Department in this
matter."
[64]
In compliance with her powers, the Public Protector stated that she
would be monitoring compliance with the remedial action
that she had
taken.
The
proper approach when deciding the review application
[65]
In
Trinity Broadcasting (Ciskei) v Independent Communications
Authority of South Africa
2004 3 SA 346
(SCA) the learned
President of that Court says the following at 353I-354C:
"In
requiring reasonable administrative action, the Constitution does
not, in my view, intend that such action must, in review
proceedings,
be tested against the reasonableness of the merits of the action in
the same way as an appeal. In other
words, it is not
required that the action must be substantively reasonable, in that
sense, in order to withstand review.
Apart from that being too
high a threshold, it would mean that all administrative action would
be liable to correction on review
if objectively assessed as
substantively
unreasonable
: compare
Bel Porto School
Governing Body and Others v Premier, Western Cape, and Another.
(
My note
: the reference is
[2002] ZACC 2
;
2002 3 SA 265
(CC) at 282 283
paragraph [46].) As made clear in
Bel Porto
, the review
threshold is
rationality
. (
My note
: at paragraph
[89].) Again, the test is an objective one, it being immaterial
if the functionary acted in the belief, in
good faith, that the
action was rational. Rationality is, as has been shown above,
one of the criteria now laid down in
section 6(2)(f)(ii)
of the
Promotion of Administrative Justice Act. Reasonableness
can, of
course, be a relevant factor, but only where the question is whether
the action is so unreasonable that no reasonable person
would have
resorted to it (see
section 6(2)(h)).
"
[66]
On this subject, the following remarks of the learned Judge in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 4 SA 490
(CC) at 513B D are also of particular significance
for present purposes:
"What will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a
fair
procedure will depend on the circumstances of each case.
Factors relevant to determining whether a decision is reasonable
or
not will include the nature of the decision, the identity and
expertise of the decision-maker, the range of factors relevant
to the
decision, the reasons given for the decision, the nature of the
competing interests involved and the impact of the decision
on the
lives and well being of those affected.
Although the
review functions of the Court now have a substantive as well as a
procedural ingredient, the distinction between appeals
and reviews
continues to be significant. The court should take care not to
usurp the functions of administrative agencies.
Its task is to
ensure that the decisions taken by administrative agencies fall
within the bounds of reasonableness as required
by the
Constitution.
" (Emphasis added.)
While
dealing with
Bato Star
, I find it useful to revisit my earlier
remarks and conclusions that the actions of the Public Protector
amount to administrative
action in terms of PAJA, by referring to
these words of the learned Judge in
Bato Star
at 506I 507A:
"The provisions of section 6 divulge a clear purpose to codify
the grounds of judicial review of administrative action as
defined in
PAJA. The cause of action of the judicial review of
administrative action now ordinarily arises from PAJA, not
from the
common law as in the past. And the authority of PAJA to ground
such causes of action rests squarely on the Constitution.
It is
not necessary to consider here causes of action for judicial review
of administrative action that do not fall within the
scope of PAJA.
As PAJA gives effect to section 33 of the Constitution, matters
relating to the interpretation and application
of PAJA will of course
be constitutional matters."
[67]
The learned author Cora Hoexter,
Administrative Law in South
Africa
2
nd
ed at page 352 says the following:
"As I see it, the distinction between appeal and review can best
be served by distinguishing between the two distinct usages
of the
word 'review': review as a process and as a remedy. The process
of review, judicial scrutiny of administrative action,
is sometimes
harmless in itself – provided it is not taken further.
The danger lies not in careful scrutiny but in
'judicial
overzealousness in setting aside administrative decisions that do not
coincide with the Judge's own opinions'.
Judges will be less
likely to usurp administrative powers if they remember that review
for reasonableness does not demand perfection
(or what the court
regards as perfection), but ought indeed to give scope for legitimate
diversity. The important thing,
then, is that Judges should not
use the opportunity of scrutiny to prefer their own views as to the
correctness of the decision.
This was put very well by the
court in
Carephone
paragraph [36] (
my note
: this
is a reference to
Carephone (Pty) Ltd v Marcus NO
1999 3 SA
304
(LAC)).
'In determining whether administrative action is justifiable in terms
of the reasons given for it, value judgments will have to
be made
which will, almost inevitably, involve the consideration of the
"merits" in some way or another. As long
as the
Judge determining the issue is aware that he or she enters the merits
not in order to substitute his or her own opinion
on the correctness
thereof, but to determine whether the outcome is rationally
justifiable, the process will be in order.'"
[68]
For all the reasons mentioned, and against this background, I am
satisfied that the outcome of the Public Protector's investigation
is
rationally justifiable and her decisions and the remedial action
taken fall within the bounds of reasonableness.
It
follows that I am not persauded that a proper case was made out by
the applicants, so that the review application must fail.
Costs
[69]
There appears to be no reason why the costs should not follow the
result. Two counsel were also employed by both sides,
so that
an appropriate order should be made in that regard.
[70] I
add that it is regrettable, in my view, that the applicants chose to
litigate. It is clearly stipulated in section
181 of the
Constitution, as already mentioned, that other organs of state,
through legislative and other measures, must assist
and protect
Chapter 9 institutions like the Public Protector to ensure the
independence, impartiality, dignity and effectiveness
of these
institutions.
The
order
[71] I
make the following order:
1. The application is dismissed.
2. The applicants, jointly and severally, are ordered to pay the
costs which will include the costs flowing from preparation of
additional heads of argument after judgment was reserved and also
consequent upon the employment of two counsel.
W R C
PRINSLOO
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
HEARD
ON: 13 FEBRUARY 2015
FOR
THE APPLICANTS: W R MOKHARI SC ASSISTED BY A PLATT
INSTRUCTED
BY: THE STATE ATTORNEY
FOR
THE 1
ST
RESPONDENT: I V MALEKA SC ASSISTED BY O
BEN-ZEEV
INSTRUCTED
BY: NKADIMENG ATTORNEYS