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2024
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[2024] ZAGPPHC 511
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Macdonald v Minister of Human Settlement, Water and Sanitation (80277/2019) [2024] ZAGPPHC 511 (30 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
80277/2019
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED.
DATE:
30 May 2024
SIGNATURE
In
the matter between:
MACDONALD,
IAN
Applicant
And
THE
MINISTER OF HUMAN SETTLEMENT,
WATER
AND
SANITATION
Respondent
In
re
:
THE
MINISTER OF HUMAN SETTLEMENT,
WATER
AND SANITATION
Applicant
And
THE
PUBLIC PROTECTOR OF SOUTH AFRICA
First Respondent
MACDONALD,
IAN
Second Respondent
JUDGMENT
MBONGWE
J:
INTRODUCTION
[1]
This is an application for leave to appeal
against the whole judgment and orders of this court in terms of which
the findings and
remedial action indicated by the erstwhile Public
Protector, Advocate Mkhwebane, against the Minister of Human
Settlements, Water
and Sanitation (the respondent) were reviewed and
set aside.
[2]
The applicant for leave to appeal is not the
Public Protector, but the party who stood to benefit from the
remedial action that
has been set aside. The Applicant has not
addressed the question of his
locus standi
to bring this application, save to state that he seeks to pursue the
implementation of the remedial action.
[3]
The court found that Advocate Mkhwebane’s
findings were premised on an improper re-visitation and interrogation
of matters
that had been resolved in a legislative mediation process
which culminated in the conclusion of a Settlement Agreement between
the Minister and the Applicant. By her conduct, the then Public
Protector had not only impermissibly disregarded the impact of the
Settlement Agreement by making damning findings on aspects which
occurred between 2002 and 20 March 2013 when the Settlement Agreement
was concluded, and in that way acting outside the authority of her
empowering statutory provisions, being sections 6(9) and
section 7(9)
of the
Public Protector Act 23 of 1994
. Inter alia, the Public
Protector had failed to make a finding of exceptional circumstances
that entitled her to engage in the
aged matter between the Applicant
and the Minister.
THE
ADDENDUM TO THE SETTLEMENT AGREEMENT
[4]
The addendum to the Settlement Agreement sought
to place the parties on a new platform or station. It in effect the
addendum maintained
the validity of the Applicant’s application
for a water licence and the continuation of its processing by the
Respondent.
Poignantly, the addendum stipulated a period of
forty-five days within which the processing of the application should
be completed
and states that the Applicant shall furnish the
Respondent with outstanding information or send communication to the
Respondent
that he will not be providing any further information and
that, upon receipt of the required information or communication that
no further information would be provided, the Respondent shall
process the application in terms of the provisions of the law in
force as at the date the application was submitted in 2002.
[5]
The Applicant’s engagement with the
Respondent following the conclusion of the Addendum is succinctly set
out in paras 22,
23,24, 25 and 26 of the judgment. The facts in these
paras are well within the knowledge of the Applicant and refute
Advocate Mkhwebane’s
finding of failure by the Respondent to
implement the terms of Addendum to the Settlement Agreement. Leave to
appeal must consequently
be refused for:
5.1
Applicant’s lack of locus standi to bring
this application;
5.2
The setting aside of Advocate Mkhwebane’s
findings and remedial action rendered none existent any right that
may have accrued
to the Applicant flowing from the remedial action
indicated.
ORDER
[6]
Resulting from the findings in this judgment, the
following order is made:
1.
The application for leave to appeal is dismissed.
MPN
MBONGWE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
APPEARANCES:
For
the Applicant:
Adv
A. Molver
Instructed
by:
Charl
Naudé Attorneys
For
the Respondent:
Adv
Z Matebese SC; Adv P Loselo
Instructed
by:
The
State Attorney, Pretoria
THIS
JUDGMENT WAS ELECTRONICALLY TRANSMITTED TO THE PARTIES’ LEGAL
REPRESENTATIVES AND UPLOADED ONTO CASELINES ON 30 MAY 2024.