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[2020] ZASCA 138
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Zuma v Office of the Public Protector and Others (1447/2018) [2020] ZASCA 138 (30 October 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1447/2018
In
the matter between:
JACOB
GEDLEYIHLEKISA ZUMA
APPELLANT
and
THE
OFFICE OF
THE
PUBLIC PROTECTOR
FIRST RESPONDENT
THE
PUBLIC PROTECTOR
SECOND RESPONDENT
ECONOMIC
FREEDOM FIGHTERS
THIRD RESPONDENT
THE
UNITED
DEMOCRATIC
MOVEMENT
FOURTH RESPONDENT
THE
CONGRESS OF THE PEOPLE
FIFTH RESPONDENT
THE
DEMOCRATIC ALLIANCE
SIXTH RESPONDENT
MABEL
PETRONELLA MENTOR
SEVENTH RESPONDENT
COUNCIL
FOR THE
ADVANCEMENT
OF THE SOUTH
AFRICAN
CONSTITUTION
EIGHTH RESPONDENT
Neutral
citation:
Jacob
G Zuma v The Office of the Public Protector and Others
(1447/18)
[2020] ZASCA 138
(30 October 2020)
Coram:
MAYA
P, ZONDI, DAMBUZA and SCHIPPERS JJA and UNTERHALTER AJA
Heard:
28
August 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. It has been published
on the
Supreme Court of Appeal website and released to SAFLII. The date and
time of hand-down is deemed to be 14H:00 on 30 October
2020.
Summary:
Application for
leave to appeal to Supreme Court of Appeal – against high
court’s refusal to grant leave to appeal costs
order –
awarded against public functionary on punitive scale – high
court exercises true discretion in granting costs
order –
interference by appellate court only in case of material misdirection
– not shown – application dismissed.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Mlambo JP and Boruchowitz and
Hughes JJ):
The
application for leave to appeal is dismissed with costs, including
the costs of two counsel on the scale as between attorney
and client.
JUDGMENT
Schippers
JA (Maya P, Zondi and Dambuza JJA and Unterhalter AJA concurring):
[1]
The
United Nations 2004 Convention against Corruption, to which South
Africa is a signatory, describes corruption in graphic and
unequivocal language:
‘
Corruption is
an insidious plague that has a wide range of corrosive effects on
societies. It undermines democracy and the rule
of law, leads to
violations of human rights, distorts markets, erodes the quality of
life and allows organized crime, terrorism
and other threats to human
security to flourish. This evil phenomenon is found in all countries
– big and small, rich and
poor – but it is in the
developing world that its effects are most destructive. Corruption
hurts the poor disproportionately
by diverting funds intended for
development, undermining a Government’s ability to provide
basic services, feeding inequality
and injustice and discouraging
foreign aid and investment. Corruption is a key element in economic
underperformance and a major
obstacle to poverty alleviation and
development.’
[1]
[2]
This
application has its genesis in grave allegations of corruption at the
highest levels of government, contained in the ‘State
of
Capture Report’ by the former Public Protector, Ms Thuli
Madonsela, published in 2016 (the Report).
[2]
The issue is whether the applicant, Mr Jacob Gedleyihlekisa Zuma, the
former President of the Republic of South Africa, should
be granted
leave to appeal against an order by a full bench of the Gauteng
Division of the High Court, Pretoria (Mlambo JP and
Boruchowitz and
Hughes JJ) (the high court), directing Mr Zuma to pay, in his
personal capacity and on a punitive scale, the costs
of a failed
application to review and set aside a decision by the Public
Protector. In terms of that decision, Mr Zuma was required
to appoint
a commission to conduct an enquiry into allegations of corruption
involving Mr Zuma as the Head of State, and senior
officials in
government.
Facts
[3]
The
Report contains troubling allegations of improper relationships
between Mr Zuma, Cabinet Ministers and senior government officials
on
the one hand, and the Gupta family on the other. It states the
following. Mr Zuma did nothing to investigate claims that some
six
weeks before he removed Mr
Nhlanhla
Nene,
the former Minister of Finance, in December 2015, members of the
Gupta family had offered Mr Mcebisi Jonas, then the Deputy
Minister
of Finance, R600 million and the position of Minister of Finance in
exchange for favours. This allegedly happened in the
presence of Mr
Duduzane Zuma, the former President’s son, at the Gupta family
residence in Saxonwold, Johannesburg, to which
Mr Jonas had been
taken. A similar corrupt offer of a cabinet post was allegedly made
to the seventh respondent, Ms Mabel Mentor,
then a member of
Parliament, in return for cancelling the South African Airways route
to India. She too, was taken to the Gupta’s
residence where the
offer was made, and where Mr Zuma was present.
[4]
The
Report also states that Mr Zuma’s appointment of Mr Des van
Rooyen as the Minister of Finance on 9 December 2015, which
had a
severe negative impact on the South African economy in the following
days, was allegedly known to the Gupta family beforehand.
Cellphone
evidence showed that Mr Van Rooyen was in Saxonwold on the night
before that appointment. The Report also contains evidence
that Mr
Brian Molefe, then the Chief Executive Officer of Eskom, was a
regular visitor to the Gupta residence in Saxonwold, and
it is
alleged that Eskom (and other state-owned entities) awarded state
contracts in corrupt circumstances, totalling billions
of Rands to
Gupta-owned companies and business associates, including Mr Duduzane
Zuma. It is also alleged in the Report that the
Cabinet had become
involved in attempts to hold commercial banks accountable for
withdrawing banking facilities from Gupta-owned
companies; and that
Mr Mosebenzi Zwane, the former Minister of Mineral Resources,
illegally secured the award of numerous government
contracts to the
Gupta family.
[5]
On 13
October 2016, the day before the Report was due to be released, Mr
Zuma, Mr Van Rooyen and Mr Zwane launched an urgent application
in
the high court to stop its publication, pending a review of the
Public Protector’s decision. However, they withdrew that
application on 1 November 2016, the day it was to be heard, and
tendered the costs thereof. Consequently, the Report was released
on
2 November 2016.
[6]
In the
Report the Public Protector stated that she was unable to fully
investigate the allegations of state capture, due to the
extent of
the issues and the inadequacy of funds allocated to her office by
government. As President, Mr Zuma was directly implicated
in the
improper conduct referred to in the Report. The Public Protector’s
remedial action therefore required the President
to appoint a judge
selected by the Chief Justice to head a commission of inquiry into
the allegations of state capture, using the
Report as a starting
point. The commission had to be set up within 30 days, and present
its report with findings and recommendations
to the President within
180 days. Thereafter, within 14 days the President was required to
submit the report to Parliament, together
with ‘an indication
of his implementation of the commission’s recommendations’.
[7]
Mr
Zuma however did not appoint the commission within 30 days. Instead,
on 2 December 2016 and in his capacity as President, Mr
Zuma launched
an application in the high court, in which he sought an order
reviewing and setting aside the remedial action required
by the
Public Protector; and that the matter be remitted to her for further
investigation (the review application).
[8]
The
review grounds, in sum, were these. Mr Zuma alleged that the remedial
action was unconstitutional because it directed him to
establish a
commission of enquiry, contrary to the provisions of s 84(2)
(f)
of the Constitution, which reserved that power to the President.
[3]
He said that he could not be instructed by anyone as to when and how
he should appoint a commission of inquiry, and if he were
to
implement the remedial action, the commission ‘would be invalid
and a nullity’, and would amount to the ‘exercise
of an
executive power under dictation’. The appointment of a judge by
the Chief Justice to head the enquiry, Mr Zuma said,
was
unconstitutional and a breach of the doctrine of separation of
powers, because the Chief Justice has no such power under the
Constitution. The decision to ‘outsource’ the remedial
action was irrational. The remedial action was inconsistent
with the
Executive Members’ Ethics Act 82 of 1998 (the Ethics Act),
which required complaints of the kind in question to
be investigated
by the Public Protector.
[9]
On 26
May 2017 the Office of the Presidency issued a media statement that
none of the review grounds suggested in any way that Mr
Zuma was
opposed to the establishment of a judicial commission of inquiry in
terms of the Public Protector’s remedial action.
On 22 June
2017 Mr Zuma informed Parliament that a decision had been taken to
establish the commission and that the date of its
commencement would
be announced.
[10]
On 24
July 2017 Mr Zuma filed a supplementary affidavit in the review
application, setting out further grounds for the review of
the
remedial action. They were these. The Public Protector had not made
any findings that Mr Zuma had acted improperly or that
his conduct
had caused any prejudice. It was irrational to remove the
investigation from the newly appointed Public Protector.
The Public
Protector does not have the power under the Constitution and the law
to direct that the allegations of state capture
be investigated by a
commission of enquiry.
[11]
A few
days later, on 4 August 2017, the African National Congress issued a
press release stating that the appointment of the commission
was ‘of
extreme urgency’. Despite the public announcements that a
commission of enquiry into state capture would be
established in
accordance with the Public Protector’s remedial action, Mr Zuma
did not inform the reviewing court of his
decision to establish the
commission.
[12]
On 13
December 2017 the high court dismissed the review application on the
following grounds. The Public Protector has the power
in appropriate
circumstances to direct the President to appoint a commission of
enquiry, in order to fulfil her constitutional
mandate. There is
nothing in the
Public Protector Act 23 of 1994
or the Ethics Act,
that prohibits the Public Protector from instructing another organ of
state to conduct a further investigation.
Although the Report does
not contain firm findings concerning wrongdoing by the President,
prima facie there was serious misconduct
or impropriety on the part
of the President, the Gupta family and the functionaries, persons and
entities referred to in the Report.
Consequently, the Public
Protector was entitled to take remedial action, which was
appropriate, as a commission of enquiry is transparent,
independent,
conducts proceedings in public, and is able to subpoena witnesses and
documentation. The appointment of a judge by
the Chief Justice to
head the commission was fitting, since the President was personally
implicated in the allegations of state
capture and the award of state
contracts to Gupta-owned entities, which allegedly also involved his
son. The high court ordered
Mr Zuma to pay the costs of the review
application in his personal capacity, on the scale as between
attorney and client (the costs
order).
[13]
On 22
December 2017 Mr Zuma lodged an application for leave to appeal the
whole of the judgment and order of the high court in the
review
application. On 9 January 2018 Mr Zuma publicly announced that he
would comply with the high court’s order and establish
the
commission. That commission, chaired by Deputy Chief Justice Zondo,
has since been established and is ongoing.
[14]
On 14
February 2018 Mr Zuma resigned as President of the Republic of South
Africa. He was succeeded by President Cyril Ramaphosa,
who on 6 April
2018 withdrew the application for leave to appeal against the
dismissal of the review application (enrolled for
hearing on 12 April
2018). The withdrawal was made an order of court on 18 April 2018.
The application to appeal the costs order
was not withdrawn as it
affected Mr Zuma personally.
[15]
On 4
June 2018 Mr Zuma launched an application to intervene in the high
court proceedings in his personal capacity; to condone the
late
filing of his application for leave to appeal; and for leave to
appeal the costs order. The intervention application was granted.
The
applications for condonation and leave to appeal the costs order were
dismissed. Mr Zuma then applied for special leave to
this Court,
which referred the application for leave to appeal the costs order
for oral argument in terms of
s 17(2)
(d)
of the
Superior Courts Act 10 of 2013
.
[16]
The
application for leave to appeal to this Court was opposed by the
Economic Freedom Fighters, the Democratic Alliance and the
Council
for the Advancement of the South African Constitution (the
respondents). They and others, including Ms Mentor, opposed
the
review application.
Prospects
of success
[17]
Before
us, it was contended that the costs order should not have been made
because the remedial action was unprecedented and its
effect was to
‘amend the Constitution’. The challenge to the remedial
action, so it was contended, was legitimate and
not reckless because
it raised important issues concerning the exercise of executive
power, and did so on the basis of legal advice,
and hence the high
court’s order as to costs failed to give this consideration the
decisive weight it warranted in the determination
of costs.
[18]
There
is however no appeal against the high court’s order dismissing
the review application. An applicant for leave to appeal
cannot
accept the lower court’s judgment on the merits on the one
hand, but challenge the correctness of those findings to
dispute the
correctness of its order on costs, on the other. This is untenable.
In short, it is impermissible to seek to relitigate
the merits of a
review in an appeal purely on costs. In
Khumalo
v Twin City Developers
,
[4]
Tshiqi JA stated this principle as follows:
‘
In the
absence of an appeal against all these findings, it is impermissible
for the appellant to rely on these allegations to justify
its appeal
on a consideration of costs only. Put differently, in instances where
an appellant has elected not to appeal against
the merits and the
factual findings of a lower court, an appeal court is not at liberty
to interrogate the correctness thereof.’
[19]
Since
there is no appeal against the order dismissing the review, the only
question is whether the appeal against the costs order
has a
reasonable prospect of success.
[5]
In this regard Mr Zuma faces a formidable hurdle: in granting a costs
order, a lower court exercises a true discretion. An appellate
court
will not interfere with the exercise of that discretion, unless there
was a material misdirection by the lower court.
[20]
Recently,
in
Public
Protector v SARB
,
[6]
the Constitutional Court affirmed the principle that an appellate
court will not lightly interfere with the exercise of a true
discretion, which involves a choice between a number of equally
permissible options. This principle applies both to an award of
costs
de
bonis propriis
and costs on a punitive scale.
[7]
Interference is warranted only where the discretion was not exercised
judicially; the decision was influenced by wrong principles;
the
decision was affected by a misdirection on the facts; or the decision
could not reasonably have been reached by a court properly
directing
itself to the relevant facts and principles.
[8]
It is not sufficient on appeal against a costs order simply to show
that the lower court’s order was wrong.
[9]
[21]
The
Constitutional Court has said that an appeal court ‘should be
slow to substitute its own decision simply because it does
not agree
with the permissible option chosen by the lower court’.
[10]
The reason for this was explained by Moseneke DCJ in
Florence
v Government of the RSA
,
[11]
as follows:
‘
This
principle of appellate restraint preserves judicial comity. It
fosters certainty in the application of the law and favours
finality
in judicial decision-making.’
[22]
This
approach is fortified by s 16(2)
(a)
of the
Superior Courts Act 10 of 2013
, which provides:
‘
(i)
When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or result,
the
appeal may be dismissed on this ground alone.
(ii) Save under
exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined
without
reference to any consideration of costs.’
This
Court has held that when interpreting the concept ‘exceptional
circumstances’ courts ‘will best give effect
to the
intention of the legislature by taking a strict rather than a liberal
view of applications for exemption, and by carefully
examining any
special circumstances relied upon’.
[12]
[23]
It was
argued on behalf of Mr Zuma that the review application fell squarely
within the principles relating to costs in constitutional
litigation
laid down in
Biowatch
Trust v Registrar Genetic Resources
,
[13]
since the question whether the remedial action was consistent with
the Constitution applies not only to this case but also to future
cases. This, so it was argued, constituted exceptional circumstances
justifying intervention by this Court, and rendered an appeal
against
only the costs order permissible.
[24]
The
argument however is unsound.
Biowatch
was an exceptional case that challenged the correct legal position
for the award of costs in constitutional litigation. In this
case the
applicant does not suggest that the existing law is wrong in any way.
His case is that the law concerning the issuance
of personal costs
orders against public officials was misapplied on the facts.
Biowatch
therefore does not aid him.
[25]
The
high court’s reasons for the costs order may be summarised as
follows.
The
overarching basis for the Public Protector’s remedial action
was that Mr Zuma was personally implicated in the allegations
of
state capture. Thus, Mr Zuma could not have been in any doubt that
his own powers were not untrammelled, and that he could not
appoint a
commission of enquiry to investigate evidence of his own involvement
in malfeasance. The review application was barred
by peremption when
Mr Zuma publicly announced his unequivocal intention to establish the
commission. Aside from this, Mr Zuma was
perempted from challenging
the remedial action – he had established the State Capture
Commission, presided over by a judge
selected by the Chief Justice,
in accordance with its terms.
[26]
The
Report had uncovered worrying levels of corruption in government
departments and state-owned entities, involving large amounts
of
taxpayer funds and state resources. The Public Protector’s
remedial action presented Mr Zuma with an opportunity to confront
and
address the problem. Instead of doing so, he launched the review
application which further delayed the resolution of the state
capture
allegations. This conduct, the high court held, was reckless and
unreasonable, and taxpayers should not foot the bill for
the actions
of wayward officials who disregard constitutional norms.
[27]
At the
hearing of the review application Mr Zuma abandoned the relief that
the matter be remitted to the Public Protector for further
investigation. The high court endorsed the submission that this
last-minute change of course established that the review application
had been brought for an improper or unconstitutional purpose –
to ensure that the serious issues raised in the Report which
implicated Mr Zuma, his friends and his family, were not investigated
at all – unless he got to choose the person to do the
investigating and decide the terms of reference of the investigation.
The court held that on this basis alone, the costs of the
application
should not be paid out of the public purse.
[28]
Counsel
for Mr Zuma submitted that the high court failed to exercise the
discretion to impose the costs order judicially. The order
has no
legal basis and is unjustifiable on the facts before the court. It
was also submitted that the challenge by Mr Zuma as the
Head of State
to the constitutionality of the remedial action, was well-founded. It
was based on legal advice and was necessary
to obtain guidance and
certainty from the court.
[29]
The
basis for a punitive costs order was laid down more than a century
ago in
Orr
v Solomon
[14]
–
to
mark the court’s displeasure at the conduct of a litigant. This
was approved by the Constitutional Court in
Public
Protector v SARB
,
[15]
in which it was held that a personal costs order on a punitive scale
is ‘justified where the conduct concerned is “extraordinary”
and worthy of a court’s rebuke’.
[16]
[30]
Regarding
personal costs awards against public officials, Navsa JA, in
Gauteng
Gambling Board v MEC for Economic Development
,
[17]
said:
‘
It is time
for courts to seriously consider holding officials who behave in the
high-handed manner described above, personally liable
for costs
incurred. This might have a sobering effect on truant office
bearers.’
This
dictum was affirmed by the Constitutional Court in
Public
Protector v SARB
,
[18]
in which it was stated that the power to mulct public officials with
personal liability for costs is sourced in the Constitution.
Khampepe
and Theron JJ said:
‘
[T]he
Constitution endows courts with the responsibility to uphold and
enforce the Constitution, and the imposition of personal
liability
for costs on public officials who act contrary to their
constitutional obligations is an important tool to be used for
this
purpose.’
[19]
[31]
The
Court went on to say that public officials, and not the taxpayer,
should pay the costs of litigation brought against them when
their
‘defiance of their constitutional obligations is
egregious’.
[20]
The
result is that ‘[a] higher duty is imposed on public litigants,
as the Constitution’s principal agents, to respect
the law, to
fulfil procedural requirements and to tread respectfully when dealing
with rights’.
[21]
This
higher duty, the Constitutional Court held, requires that public
officials, ‘observe heightened standards in litigation.
They
must not mislead or obfuscate. They must do right and they must do it
properly. They are required to be candid and place a
full and fair
account of the facts before a court’.
[22]
[32]
Applied
to the present case, the high court was not merely entitled, but
obliged to consider whether Mr Zuma acted consistently
with his
constitutional obligations as President. In
Economic
Freedom Fighters v Speaker of the National Assembly
,
[23]
the Constitutional Court said that the President must ‘ensure
that our constitutional democracy thrives’, must support
all
institutions or measures designed to strengthen that democracy, and
must ‘fulfil all obligations imposed on him, however
unpleasant’. Likewise, the Constitutional Court has held that
the powers and responsibilities of public servants –
which
include those of the President – must be exercised for the
public benefit, and not for personal advancement.
[24]
The high court was thus correct in assessing Mr Zuma’s conduct
in bringing the review application, also against the standards
for
public administration contained in s 195 of the Constitution.
[25]
[33]
It is
beyond question that the high court applied the correct legal
principles concerning the award of personal and punitive costs.
It
had regard to this Court’s decision in
Gauteng
Gambling Board
.
It rightly found that the President could not litigate for the
purpose of protecting his own personal interests. This finding
is
underscored by the President’s initial attempt to suppress the
publication of the Report, which application was withdrawn
at the
eleventh hour, and his abandonment of the relief sought in the review
application that the matter be remitted to the Public
Protector. The
effect of renouncing remittal, as the high court correctly observed,
was that if the review succeeded, neither the
Public Protector nor an
independent commission would have investigated Mr Zuma’s
conduct.
[34]
Mr
Zuma can point to no factual error that influenced the costs order.
The high court clearly gave considerable thought to the question
as
to whether the review application was launched recklessly. The
implementation of the remedial action presented an opportunity
for
the President to suppress his own personal interests and serve the
national interest as the Constitution required. Mr Zuma
chose the
former, which directed attention away from the serious allegations of
corruption in which he was fingered. This resulted
in a delay of the
investigation into those allegations for more than a year. In May and
June 2017, Mr Zuma himself stated that
he would appoint a commission
but did not notify the high court of this. He thereafter filed a
supplementary affidavit containing
even further grounds of review,
wholly unrelated to the supposed high constitutional point that he
now advances to justify the
review. What is more, he relied on the
pending review to justify his delay in appointing the commission. The
high court’s
finding that it was not open to the former
President to contend that there was merit in bringing the review or
that he had a reasonable
basis to pursue it, thus cannot be faulted.
[35]
That
Mr Zuma was motivated by personal interests in reviewing the Public
Protector’s decision, is buttressed by the following
facts. He
challenged the remedial action on every conceivable ground. He could
have appointed the commission immediately and still
sought
declaratory relief as to the lawfulness of the remedial action. Mr
Zuma’s own conduct demonstrates that this route
was both
available and feasible. On 22 December 2017, while still President,
he lodged an appeal against the high court’s
order and stated
publicly on 9 January 2018 that the appointment of a commission could
not wait any longer whilst his appeal was
pending. And at no stage
before, or during the review proceedings, did Mr Zuma even suggest –
as he now contends –
that the Constitution permits the Deputy
President to perform the functions of the President, where the latter
is unable to do
so. That, of course, would have undercut his argument
that only the President had the power to appoint a commission of
enquiry,
and rendered the review application pointless.
[36]
In
conclusion, there is no reasonable prospect that the applicant will
establish any of the grounds upon which leave to appeal is
sought, to
the requisite high degree. The application must therefore be
dismissed.
Costs
[37]
In
this application Mr Zuma is acting in a personal and not a
representative capacity, and the remaining question is whether he
should be ordered to pay costs on an attorney and client scale.
[26]
The respondents seek an order that Mr Zuma pay the costs of the
application on a punitive scale.
[38]
In
Johannesburg
City Council v Television & Electrical Distributors
,
[27]
this Court endorsed the extended meaning placed on the term
‘vexatious’ in the context of a punitive costs award,
namely that proceedings may he regarded as vexatious when a litigant
puts the other side to unnecessary trouble and expense which
it ought
not to bear. The Constitutional Court has affirmed this approach in
Public
Protector v SARB
,
[28]
in which it held that a punitive costs order is appropriate ‘in
circumstances where it would be unfair to expect a party
to bear any
of the costs occasioned by litigation’.
[29]
[39]
Like
any other litigant, Mr Zuma was entitled to exercise his right of
appeal in relation to the costs order. But in doing so, he
put the
respondents to unnecessary trouble and expense, which in the
particular circumstances of this case, they ought not to bear.
A
punitive costs order is appropriate to mark the court’s
displeasure at a litigant’s conduct, which includes vexatious
conduct and ‘conduct that amounts to an abuse of the process of
court’.
[30]
[40]
The
respondents submitted that Mr Zuma’s conduct in proceeding with
this application and his attempt to relitigate the merits
of the
review, constitute an abuse of process. There is force in this
submission, given that in both the review application and
these
proceedings, Mr Zuma sought to justify the impermissible, rather than
accept the error of his challenge. And it cannot conceivably
be in
the interests of justice to permit Mr Zuma to pursue an appeal
against the costs order, in circumstances where the launch
of the
review application was reckless and motivated by personal interests.
His delay in establishing the commission of enquiry
into serious
allegations of state capture was prejudicial both to the public and
national interest, and subversive of our democratic
ethos.
[41]
For
all these reasons, a punitive costs order in this application is
justified. The applicant has not established a reasonable prospect
of
success on appeal. It is therefore unnecessary to consider the high
court’s refusal to condone the late filing of the
application
for leave to intervene.
[42]
The
following order is issued:
The
application for leave to appeal is dismissed with costs, including
the costs of two counsel on the scale as between attorney
and client.
_______________________
A
Schippers
Judge
of Appeal
APPEARANCES
For
Appellant:
M Sikhakhane SC
T
Masuku SC
Mpilo
Sikhakhane
Instructed by:
Lugisani Mantsha
Attorneys, Johannesburg
McIntyre
Van Der Post, Bloemfontein
For
Third Respondent T Ngcukaitobi SC
K Premhid
Instructed by:
Ian Levitt
Attorneys, Sandton
Lovius Block
Attorneys, Bloemfontein
For
Sixth Respondent S Budlender SC
M Bishop SC
Instructed by:
Minde, Shapiro &
Smith Inc, Cape Town
Symington & De
Kok Attorneys, Bloemfontein
For
Eighth Respondent MM Le Roux
OK Motlhasedi
Instructed by:
Werksmans Attorneys,
Sandton
Honey Attorneys,
Bloemfontein
[1]
The United
Nations Convention Against Corruption (
2004),
adopted by the UN General Assembly on 31 October 2003, which came
into force on 14 December 2005. It was signed by South
Africa on 9
December 2003 and ratified on 22 November 2004.
[2]
State of
Capture Report: No 6 of 2016/2017 entitled, ‘Report on an
investigation into alleged improper and unethical conduct
by the
President and other state functionaries relating to alleged improper
relationships and involvement of the Gupta family
in the removal and
appointment of Ministers and Directors of the State-Owned
Enterprises resulting in improper and possibly corrupt
award of
State contracts and benefits to the Gupta family’s
businesses’.
[3]
Section 84(2)
(f)
of the Constitution provides:
84
Powers and
functions of President
. . .
(2)
The President is responsible for-
. . .
(f)
appointing commissions of inquiry.
[4]
Khumalo
and Another v Twin City Developers (Pty) Ltd and Others
[2017] ZASCA 143
para 60.
[5]
In terms of
s
17(1)
of the
Superior Courts Act 10 of 2013
, leave to appeal may be
granted only where the court is of the opinion that the appeal has a
reasonable prospect of success.
[6]
Public Protector v South
African Reserve Bank
[2019]
ZACC 29
;
2019 (9) BCLR 1113
(CC) para 144.
[7]
Public Protector v SARB
fn 6 para 226.
[8]
Ibid para
107.
[9]
Ibid para 144.
[10]
Ibid
8
para 145.
[11]
Florence v Government of the
Republic of South Africa
[2014]
ZACC 22
;
2014 (6) SA 456
(CC);
2014 (10) BCLR 1137
(CC) para 113.
[12]
Mgwenya NO and Others v
Kruger and Another
[2017]
ZASCA 102
para 8.
[13]
Biowatch Trust v Registrar
Genetic Resources and Others
[2009]
ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC).
[14]
Orr v
Solomon
1907 TS 281.
[15]
Footnote 6 para 223.
[16]
Public Protector v SARB
fn 6 para 226.
[17]
Gauteng Gambling Board and
Another v MEC for Economic Development, Gauteng Provincial
Government
[2013]
ZASCA 67
;
2013 (5) SA 24
(SCA) para 54.
[18]
Public
Protector v SARB
fn 6 para 148.
[19]
Public
Protector v SARB
fn 6 para 148 per Khampepe and Theron JJ.
[20]
Public
Protector v SARB
fn 6 para 153.
[21]
Public
Protector v SARB
fn 6 para 155.
[22]
Public
Protector v SARB
fn 6 para 152.
[23]
Economic Freedom Fighters v
Speaker of the National Assembly and Others; Democratic Alliance v
Speaker of the National Assembly
and others
[2016]
ZACC 11
;
2016 (3) SA 580
(CC) para 26.
[24]
United Democratic Movement v
Speaker of the National Assembly and Others
[2017]
ZACC 21
;
2017 (5) SA 300
(CC) para 7.
[25]
Section 195 of the Constitution
inter alia provides:
‘
Basic
values and principles governing public administration
195. (1) Public administration
must be governed by the democratic values and principles enshrined
in the Constitution, including
the following principles:
(a) A high standard of
professional ethics must be promoted and maintained.
. . .
(f) Public administration must
be accountable.
(g) Transparency must be
fostered by providing the public with timely, accessible and
accurate information.
(2) The above principles apply
to—
(a) administration in every
sphere of government;
(b) organs of state; and
(c) public
enterprises. . . .’
[26]
P
ublic
Protector v SARB
fn 6
para 39. The Constitutional Court has said that while the test for
awarding a personal costs order or costs on a punitive
scale may
overlap, an independent, separate enquiry should be carried out by a
court in respect of each order.
[27]
Johannesburg
City Council v Television & Electrical Distributors (Pty) Ltd
and Another
1997
(1) SA 157
(A) at 177D-E, approving
In
Re Alluvial Creek, Ltd
1929 CPD 532
at 535.
[28]
Public Protector v
SARB
fn 6.
[29]
Public Protector v SARB
fn 6 para 221.
[30]
Public Protector v SARB
fn 6 para 223.