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[2015] ZAGPPHC 79
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Seape and Another v Head: Special Investigating Unit and Others (A471/13) [2015] ZAGPPHC 79 (13 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: A471/13
DATE: 13 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
MOIRA
GRANNY
SEAPE
......................................................................................................
First
Appellant
AHANANG
HARDWARE & CONSTRUCTION
CC
.....................................................
Second
Appellant
and
THE
HEAD: SPECIAL INVESTIGATING
UNIT
...........................................................
First
Respondent
MINISTER
FOR HUMAN
SETTLEMENTS
...............................................................
Second
Respondent
PRESIDENT OF THE
REPUBLIC OF
SOUTH
AFRICA
.................................................................................................................
Third
Respondent
NATIONAL HOME
BUILDERS REGISTRATION
COUNCIL
(NHBRC)
........................................................................................................
Fourth
Respondent
JUDGMENT
Tuchten
J
:
1. The appellants
sought an order in the court below (Strijdom AJ) declaring that
Proclamation no. R7 of 2007 (as extended by Proclamation
no. R35 of
2010) does not mandate the Special Investigating Unit (SIU) to
investigate the affairs of the fourth respondent (the
Council) and
the appellants respectively, interdicts directed at enforcing the
declaration they sought and an order compelling
the first respondent
to release to the appellants a certain report compiled in about March
or April 2011 relating to the first
appellant’s alleged
conflict of interest in her office in the Council.
2. The first
appellant was appointed as a councillor and chairperson of the
Council for a period of three years beginning on 1 May
2007. The
second appellant was at the relevant time wholly owned by the first
appellant and carried on business in the subsidy
housing construction
industry.
3. In May 2010, a
member of Parliament referred to the second respondent (the Minister)
allegations of irregularities within the
Council. It was alleged that
the first appellant was party to certain of these irregularities.
4. The Minister in
turn referred the allegations to the SIU, whose statutory duty it is
to investigate such allegations. In terms
of the
Special
Investigating Units and Special Tribunals Act, 74 of 1996
, the third
respondent (the President) may whenever he or she deems it necessary
on account of certain grounds, establish an SIU
and refer the matter
to an existing SIU for investigation. Acting under this measure, the
then President established the SIU to
perform the duties and exercise
the powers and functions conferred upon the SIU from time to time.
The acting President decided
to have the allegations investigated
and, for this purpose, issued Proclamation no. R7 of 2007. The period
of matters to be investigated
was later extended by Proclamation no.
35 of 2010.
5. The SIU went
about the duties entrusted to it, as it perceived them to be, and
compiled a report. On 2 April 2010 the first appellant
was notified
by the chief of staff of the SIU that the SIU had furnished the
Minister with its report. The first appellant asked
for a copy of the
report but the SIU has refused to provide the first appellant with
one.
6. However the
matter reached the newspapers, where the alleged contents of the
report were reported. We can infer that the report
showed the first
appellant in a bad light because she complains that her family has
been adversely affected by the bad publicity.
On 28 June 2011, the
Minister held a media briefing and in July 2011 held a press
conference. During the course of these he referred
to the report
which, the Minister said, revealed serious discrepancies which
warranted proper investigation and revealed that the
first appellant
had tendered her resignation and was under investigation for possible
conflict of interest and corruption.
7. This, and other
public utterances, prompted the first appellant to seek access to the
report. They did this by correspondence
but although invited to do
so, they did not invoke the provisions of the Promotion of access to
Information Act, 2 of 2000 (PAIA)
or comply with the requirements of
PAIA. Access was refused. The appellants then brought the present
application.
8. Before the case
was called in the court below, the appellants and the first
respondent entered into a settlement agreement. It
appears that the
present head of the SIU had been instructed by the former head of the
SIU to settle the matter. Pursuant to that
instruction, a draft
settlement was approved by the appellants and the first respondent
(through the present head of the SIU) handed
the settlement up to
court. The settlement agreement was made an order of court.
9. This has become
relevant, because by notice of motion delivered to the presiding
judge in this appeal during the early afternoon
on the day before the
appeal was due to be heard, the first respondent sought leave to file
heads of argument out of time. The
substance of this application was
that the first respondent be allowed to resile from the settlement
and re-enter the fray. We
refused the application, ruling that while
the order of court in relation to the settlement between the
appellants and the first
respondent stood (I might add that no
proceedings to set aside that order of court have been instituted),
it was simply not competent
to permit the first respondent once again
to join issue with the appellants.
10. When the appeal
was called, counsel appeared for the Minister specifically to inform
the court that the Minister had decided
not to oppose the appeal. The
President and the NHBRC abided, as they did in the court below.
11. The main issue
before the court below was whether the SIU had been lawfully mandated
under the earlier Proclamation to investigate
the affairs of the
first appellant and the Council. The provisions of the later
Proclamation do not affect this question. The issue
turns on the
proper interpretation of Proclamation R7 of 2007. It reads in
relevant part under the heading SPECIAL INVESTIGATING
UNITS AND
SPECIAL TRIBUNALS ACT 1996 (ACT NO. 74 OF 1996: REFERRAL OF MATTERS
TO EXISTING SPECIAL INVESTIGATING UNIT AND SPECIAL
TRIBUNAL:
WHEREAS allegations
as contemplated in section 2(2) of the Special Investigating Units
and Special Tribunals Act, 1996 (Act No.
74 of 1996) (hereinafter
referred to as “the Act”), have been made in respect of
the development and delivery of low
cost housing in South Africa
through the National Department of Housing, the Provincial
Departments of Housing, the former Housing
Development Boards and
Corporations and Local Authorities and their appointed agents
(hereinafter referred to as the “Institutions”);
AND WHEREAS the
Institutions suffered losses that may be recovered;
AND WHEREAS I deem
it necessary that the said allegations should be investigated and
justiciable civil disputes emanating from such
investigation should
be adjudicated upon;
Now therefore I
hereby, under section 2(1) of the Act, refer the matters mentioned in
the Schedule to the Special Investigating
Unit established by
Proclamation No. R. 118 of 31 July 2001 and determine that, for the
purposes of the investigation of the matters,
the terms of reference
of the Special Investigating Unit are to investigate as contemplated
in the Act any -
(a) serious
maladministration in connection with the affairs of the Institutions;
(b) improper or
unlawful conduct by officers and/or employees of the Institutions;
(c) unlawful
appropriation or expenditure of public money or property;
(d) unlawful,
irregular or unapproved acquisitive act, transaction, measure or
practice having a bearing on State property;
(e) intentional or
negligent loss of public money or damage to public property;
(f) offence referred
to in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates
to the aforementioned offences) of Chapter
2 of the Prevention and
Combatting of Corrupt Activities Act, 2004, and which offences were
committed in connection with the affairs
of the Institutions; or
(g) unlawful or
improper conduct by any person, which has caused or may cause serious
harm to the interests of the public or any
category thereof,
which have taken
place between 1994 and the date of publication of this Proclamation,
and to exercise or perform all the functions
and powers assigned to
or conferred upon the said Special Investigating Unit in relation to
the said matters in the Schedule, for
the purpose of the recovery of
any losses suffered by the Institutions.
12. The Schedule
mentioned in the body of the Proclamation lists several different
causes of “[l]oss of State funds”
and “[mismanagement
and misuse of the State’s low cost housing scheme” and,
in numbered paragraph 3,
The conduct of
officials, employees and municipal councillors of the Institutions
and their approved agents responsible for or involved
in the
administration of the State’s low cost housing schemes and in
the payment of subsidies under such schemes, which has
resulted in
losses of or lack of control over property or money allocated for
such schemes.
13. The court below
found that the President could not have intended by the Proclamation
to recover losses suffered as a result
of the conduct of officials
and employees of the appointed agents of local authorities but not as
a result of the conduct of the
officials and employees of the
authorised agents of the national and provincial departments of the
former housing boards and corporations.
14. With this
conclusion I agree. But the point taken by the appellants is that the
conduct of the NHBRC, its councillors and chairperson
and the
appointed agents of the NHBRC is not covered by the Proclamation
because the NHBRC is not one of the Institutions identified
in the
Proclamation. In my view this point is well taken.
15.
The preamble recites that allegations were made in relation to the
Institutions, amongst which the NHBRC is not included. The
intention
of the Proclamation as a whole is to create a framework for the
investigation of those very allegations. So although
certain of
subparagraphs (a) to (g), in which the scope of the investigation is
identified, do not specifically mention that the
investigation is to
take place in relation to the Institutions, the Proclamation cannot
be interpreted to mean that, eg,
any
unlawful
or improper conduct by any person, which has caused or may cause
serious harm to the interests of the public or any category
thereof
(subparagraph (g)) is a proper subject for investigation or that
any
“
Institution”
may lawfully be investigated pursuant to the Proclamation..
16. Because the
NHBRC is not one of the Institutions listed in the Proclamation and
the first appellant was not an agent of any
Institution listed in the
Proclamation, prayer 1 of the appellants’ notice of motion
before the court below should therefore
have been granted.
17. In prayer 2, the
appellants sought an order directing the first respondent and his SIU
forthwith to cease their investigation.
That investigation has
ceased, pursuant to the settlement, but I think, in the light of the
procedural developments I have described
above, that such an order in
terms of prayer 2, suitably adapted, be made.
18. There remains
for consideration the relief for access to the report. The court
below, correctly in my view, found that the appellants
ought to have
invoked the provisions of PAIA. As they did not, they have not made
out a case for access to the report and cannot
succeed in relation to
this relief. I cannot of course express any opinion on whether, if
PAIA had been invoked and its procedures
followed, the appellants
would have succeeded.
19. No costs are
sought, either in this court or in the court below.
20. I therefore
propose the following order:
1 The appeal
succeeds. The order of the court below is replaced with the
following:
A. It is declared
that Proclamation no. R7 of 2007, as extended by Proclamation no. R35
of 2010, does not mandate the Special Investigating
Unit headed by
the first respondent to investigate the affairs of the National Home
Builders Registration Council or the applicants;
B. The first
respondent and the Special Investigating Unit of which he is the head
are directed to refrain from investigating the
affairs of the
appellants in relation to the National Home Builders Registration
Council unless duly authorised to do so;
C. Prayer 3 of the
notice of motion is refused.
2 There will be no
order as to costs either in relation to the appeal or in relation to
the proceedings in the court below.
NB Tuchten
Judge of the High
Court
13 February 2015
I agree. It is so
ordered.
C Pretorius
Judge of the High
Court
13 February 2015
I agree.
MW. Msimeki
Judge of the High
Court
13 Febraury 2015