IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – BHISHO)
Case No: 272/2024
OF INTERES T
In the matter between: -
NOXOLO MARU First Applicant
NOSIPHO SOM DYALA Second Applicant
THULISA SONJANI Third Applicant
and
MEC FOR TRANSPORT AND COMMUNITY SAFETY
EASTERN CAPE First Respondent
HEAD OF THE DEPARTMENT OF TRANSPORT
EASTERN CAPE Second Respondent
DEPARTMENT OF TRANSPORT, EASTERN CAPE Third Respondent
___________________________________________________________________
JUDGMENT
______________ _______________________________________________ ______
Beyleveld AJ:
[1] This is the revised judgement of the ex tempore judgement that I handed down
on the 27th of March 2025.
[2] This application has its genesis in an investigation report of a Mr Ts haka,1 a
Deputy Director: Security of the Department of Transport, Eastern Cape titled
“Investigation Report into Alleged Fraudulent activities at Scholar Transport ”,
dated 28 October 2022 together with a Supplementary Report dated the 16th
January 2023.2
[3] The Applicants seek an order declarin g the Report unlawful with consequential
relief which is to the effect that the Report should be set aside.
[4] Further relief sought in the prayers relates to a prohibition on implementing the
Report and declaring certain disciplinary proceedings against Applicants , as a
consequence of the Report , unlawful and of no force and effect.
[5] A conditional order is also sought relating to any delay in instituting the present
application.
[6] The Applicants contend in the founding paper s that the relief sought is
essentially a review in terms of the Promotion of Administrative Justice Act3
(‘PAJA’) alternatively a legality review.
1 ‘Tshaka’.
2 Hereinafter referred to as the Report, save where the context requires the reference to a ny of the two
specific re ports.
3 3 of 2000.
[7] The main relief, on a proper analysis of the papers, does fall within the
framework of administrative review, but certainly some of the other relief clearly
does not.4
[8] The salient facts are the following:
8.1 The Applicants are employed in the Scholar Transport Uni t of the Third
Responde nt.5
8.2 Tshaka was appointed to investigate allegations relating to allocation
letters that some officials in the Scholar Transport Unit had amended.
Tshaka was to determine whether certain claims had merit. Tshaka
compiled and issued the Report.
8.3 It was contended by the head of the Department in the appointment letter
of Tshaka , that he had received information that certain Scholar Transport
service providers inflated their invoices or that there appeared to be a
sudden increase in routes or kilometers.
8.4 It is further all eged that allocation letters were amended by some officials.
8.5 Tshaka was requested to investigate allegations of nefarious activities , and
to determine whether or not such claims were meritorious and whether or
not remedial action was required to be taken.
4 For instance, the interdictory relief and the declaration of unlawfulness as well as the order sought
relating to the disciplinary charges. As to the applicability of PAJA, the Constitutional Court in Viking Pony
Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro - Tech Systems (Pty) Ltd and Another 2011 (1) SA 327
(CC) (‘Viking Pony Africa judgement ’’) at [37] defined the meaning of administrative action as contained in
PAJA as follows: “ PAJA defines adm inistrative action as a decision or failure to take a decision that
adversely affects a) the rights of any person , which has a direct, external legal effect. This includes ‘action
that has the capacity to affect legal rights’. Whether or not administrative action, which would make PAJA
applicable, has bee n taken cannot be determined in the abstract. Regard must also be had to the facts of
each case” (footnotes omitted).
5 The ‘Department ’.
8.6 Tshaka’s appointment letter , which is dated 23rd August 2022 , concludes
as follows:
“You are requested to respond to the above allegations by Monday
31 October 2022 at 16h00 but please note that th ere’s (sic) no
obligation to do so, if you wish, as its within your constitutional right
to do so. ”
8.7 The Applicants were placed on precautionary suspension on the 9th
September 2022 .
8.8 As previously i ndicated, the first Report was delivered on the 28th of
October 2022.
8.9 Although the above suspension lapsed after two months, the Applicants
were not allowed to return to work.
8.10 In March 2023, the Applicants were placed on precautionary transfers.
8.11 Thereafter, the First and Second Applicant s obtained relief from th e
chairperson of the disciplinary enquiry . Such relief was to the effect that the
precautionary transfers be uplifted before a specified date .6
8.12 The Department failed to comply with the above -mentioned ruling but,
instead, placed the First and Second Applicants on forced special leave.
8.13 The MEC ,7 after receipt of a letter from the Applicant’s attorneys , rescinded
the decision to place the First an d Second Applicants on special leave , and
such Applicants were then allowed to return to work.
6 This ruling did not affect the Third Applicant, whose disciplinary chairman was someone else.
7 The First Respondent.
8.14 Although he First and Second Applicants returned to work they were not
permitted to perform their usual work functions ; for instance , they were
excluded from strategic meetings and participating in “any such related
activities” . They were also denied the use of their laptops. The
Respondents, in answer to these allegations in the Founding Affidavit,
simply deny the contents without any explan atory examples of what the
Applicants’ duties now entailed (as opposed to what they formerly
entailed ). This bald and unsubstantiated denial can therefore, for the
purposes of applying the Plascon -Evans rule8 be disregarded.
8.15 On the 27th of October 2022 the First Applicant received an email from
Tshaka inviting a response to certain findings that Tshaka had already
made.9 Although a finding had already been made by Tshaka, four days
were offered to the First Applicant to respond to the above allegations;
significantly , however, the first Report is dated the 28th October 2022 and
was either completed on that date or (on the probabilities ) completed prior
to that date and finalized on the 28th Octo ber 2022.
8.16 On the 28th October 2022 the First Applicant , in writing , responded by
requesting relevant documentation and information prior to the anticipate d
response on or before 31 October 2022 .10
8 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 62 3 (A).
9 The findings made by Tshaka were formulated as follows:
▪ Irregular appointment of non -bidders in respect of the Joe G qabi District to the value of R
9,889,064.00 .
▪ Poor performance regarding inability (sic) to ensure that irregular expenditure was avoided during
the contracting of operators in 2020 in al l the districts whilst you were acting chief director -
Scholar Transport
▪ Poor performance regarding the inability to ensure avoidance of irregular amendments which
were made to the Scholar Trans port database during the period July 2022.
10 Some of the information requested included the following; a) the closing register of all operators per
district, b) the attendance registers of the briefing sessions per district , c) the list of non -bidders per district
and their irregular expe nditure, d) the minutes recorded and signed from the BEC, BAC , and IBAC
respectively per district e) a copy of the signed performance agreement between the First Applicant and
his supervisor for the period 1 April 2020 (including quarterly performance reviews from that date
onwards), f) copies of the results of any assessment s by the supervisor in respect of the First Applicant for
8.17 The letter penned by the First Applicant concluded as follows :
“All the above information is requested as soon as possible as it will
make it easy for me to respond thoroughly to your questions.”
8.18 Tshaka responded by forwarding certain documents11 which the First
Applicant contended were not the major portion of the information
requested and it was therefore of no assistance in formulating any
meaningful response to the already made findings by Tshaka.12
8.19 There was also a written communication by the First Respondent to the
Head of the Department imploring the furnishing of the outstanding
information requested from Tshaka. Significantly , there was no response
from the aforesaid functionary.
8.20 It does not appear whether the Department intends proceeding with any
disciplinary enquiry, notwithstanding the MEC having indicated in a letter
that disciplinary proceedings (if relevant ) must take its course.
8.21 What is stated above with regards the First Applicant’s interaction with
Tshaka and the MEC , was to a large extent mirrored in the interactions
between the Second Applicant and the aforesaid functionaries. The
Second Applicant was also charged in disciplinary proceedings, but the
Second Applic ant had initiated proceedings before the General Public
the period 1 April 2020 to present date , g) a list of all amendments per distri ct which we re made on the
Scholar Transport database from 1 April 2021, and h) the payments made per district . It was also pointed
out that Tshaka’s contention that the document s are so voluminous that it is impossible to scan and
forward them , that a request is made that all info rmation in detail for each district of all non -bidders and all
non-responsive bidders be furnished . There was also a request details of the contended for irregular
expenditure in the sum of R9,889,064.00.
11 Described as follows: a) combined report by the BEC/BAC on Chris Hani, b) Memorandum from head of
dep approving that yourself and others procced with signing of SLA’s , c) the information on the first bullet
above covers most of the issues raised in your re quest.
12 It is to be emphasized that by this time the Report had already been finalized.
Service Sector Bargaining Council (which made an award in favour o f the
Second Applicant , which award was based on an unfair labour practice
and included compensation ).
8.22 The Second Applicant has returned to work but suffers the same disability
restrictions as encountered by the First Applicant.
8.23 In so far as the Third Applicant is concerned, her disciplinary proceedings
and ancillary events were slightly different, but it in no way detracts from
the overall picture enumerated in respect of the other Applicants ; no
disciplinary proceedings have been completed and the same uncertainty
as to the status of the disciplinary proceedings in respect of the First and
Second Applicant are also apposite in respect of the Third Applicant.
[9] The Respondents oppose the application and the grounds of opposition as set
out in Counsel for the Resp ondent s’ Heads of Argument may conveniently be
paraphrased as follows:
9.1 The relief sought, although declaratory in form, appears to be a PAJA or
legality review which is not foreshadowed in the Notice of Motion.
9.2 If the relief is for a review, Tshaka’s internal investigation did not constitute
administrative action (or any action subject to a legality review ) as Tshaka
was not a fact -finder and was merely expressing an opinion. His
investigative function did not include any dete rmination of culpability , and
therefore did not adversely affect the rights of the Applicants.
9.3 Declaratory orders are in the discretion of a court and , because the matter
is moot by virtue of the investigation having been completed and
disciplinary procee dings instituted , the Applicants s hould be non -suited.
9.4 The lateness of the application brought by the Applicants militates against
them being heard on the merits.
CONDONATION
[10] At the hearing of this application, Respondents Counsel abandoned any reliance
on the delay issue.
[11] The concession to abandon reliance on the question of delay was appropriate
under the circumstances .
[12] Essentially , the Respondents contended that the Applicants ’ application had no
prospect of success and that condonation should therefore be refused.
[13] In any event, the application papers were served on the Respondents on the
18th April 2024 and the 180 days referred to in PAJA could, at the earliest, only
have commenced running when the Applicants became aware of the content of
the Report. In the Founding Affidavit it is alleged that the Third Applicant only
became aware of the contents of the Report on the 29th November 2023 when
an indexed and paginated bundle for the disciplinary hearing was delivered,
which bundle included the Report.
[14] On a conspectus reading of the Answering Affidavit, it seems to me that the
Report was init ially not made available to t he Applicants , but only attached to the
bundle that was prepared for the purpose of the disciplinary enquiry .13
[15] It is however, not necessary to further debate the issue of delay as it has been
conceded that the application was initiated timeously.
13 This inference follows naturally from assertions made in the Answering Affidavit that the Report was for
internal purposes only.
A PAJA REVIEW OR A LEGALITY REVIEW
[16] The substance for Applicant’s review is contained in the Founding Affidavit. The
order sought in the Noti ce of Motion is a declarator that the Report is unlawful,
but there is also a prayer that the Report be set aside; this in essence is the
basis for a review.14
[17] The Respondents , in written and oral argument , rely on paragraph 38 of the
Viking Pony Africa judgement.15
[18] A significant qualification to paragraph 38 of the Viking Po ny Africa judgement is
formulated in paragraph 39 which reads as follows:
“[39] If the City were about to pronounce on the culpability o r
otherwise16 of Viking, Hidro -Tech and Viking would have to be
afforded the opportunity , in terms of PAJA , to make whatever
representations they may wish to make. Similarly , if Viking were
found guilty , then the relevant provisions of PAJA would have to be
invoked before an appropriate sanction is considered and imposed
by the City.
[19] This case has not,17 however, reached that stage.
14 See the definition of administrati ve action in PAJA. See further Grey’s Marine Hout Bay Ltd and Others
v Minister of Public Works and Others 2005 (6) SA 313 (SCA) at [33]; Tswane City and Others v Nambiti
Technologies (Pty) Ltd 2016 (2) SA 494 (SCA) at [22] to[ 25]. The formulation of admin istrative action has
already been alluded to above in [37] of the Viking Pony African judgement supra .
15 “[38] Detecting a reasonable possibility of a fraudulent misrepresentation of facts, as in this case , could
hardly be said to constitute an administrative action. It is what the Organ of State decides to do and
actually does with the information it has become aware of , which could potentially trigger the applicability
of PAJA. It is unlikely that a decision to investiga te and the process of investigation, which excludes a
determination of culpability which could itself adversely affect the rights of any person, in a manner that
has a direct and external legal effect.”
16 Own emphasis.
17 Own emphasis.
[20] Tshaka ’s appointment letter itself contemplates engagement with affected
parties.18
[21] On a proper reading of the Report,19 adverse findings of culpability on the part of
the Applicants were made. The findings are conclusive in relation to contended
for misconduct by the Applicants . Factual findings are made and legal
conclusions drawn. Indicative of this are words and/ or phrases used in the
Report such as “irregularly or fraudulently” , “complicit or accessories in the
perpetration of the fraudulent transactions” , and “Ms Sonjani and Maru acted
irregularly , without authorization and probably in cahoots with the operator” .
[22] Somewhat bizarrely, Tshaka in the Report asserts that the Applicants were
afforded the right to respond to these findings. In this regard he refers to his
letter dated the 27th October 2022 which has been dealt with above.
[23] The audi alteram partem rule is embedded in our law even prior to the advent of
our Constitutional dispensation.20
[24] In Nortje en ‘n Ander v Minister van Korrektiewe Dienste and Andere ,21 Brand
AJA (as he then was) commented that the application of the audi rule is an
elastic concept and that specific definition for the requirements are neither
practical nor appropriate.
[25] There exists a legitimate expectation that the right to be heard prior to a decision
or finding will be honoured.22 The question whether a legit imate expectation will
18 The relevant portion reads as follows: “Please engage with all relevant parties and make findings [own
emphasis] and recommendations to my office.”
19 Perhaps even a cursory reading thereof.
20 Administrator of Tra nsvaal v Traub 1989 (4) SA 731 (A). See also Masethla v President of the RSA
2008 (1) 566 (CC) at [74] and [75]; Malan v City of Cape Town 2014 (6) SA 215 ( CC) at [135 ]; FirstRand
Bank Ltd (t/a Rand Merchant Bank) and Another v the Master of the High Court, Cape Town and Others
2014 (2) SA 527 (W) at [40] and [44].
21 2001 (3) SA 472 (SCA) at [18].
22 A legitimate expectation to be heard entitles a person to procedural fairness.
confer a right to substantive relief is uncertain, but in the present instance it has
no practical consequence.23
[26] The term legitimate expectation was first verbalized in the context of
administrative law in the decision handed down by Lord Denning MR in Schmidt
v Secretary of State for Home Affairs .24 In this regard, Lord Denning observed:
“…an administrative body may, in a proper case, be bound to give
a person who is affected by the decision an opportunity of making
representations. It all depends on whether he has some right or
interest, or, I would add, some legitimate expectation, of whi ch it
would not be fair to deprive him without hearing what he has to
say.”25
[27] In Walele v City of Cape Town and Others ,26 the Constitutional Court confirmed
that the common law doctrine of legitimate expectation remains part and parcel
of procedural fairness in post -1994 administrative law. In this particula r instance
it is of no significance whether the review is a PAJA review or a legality review.
As was stated in Minister of Home Affairs v Public Protector ,27 it does not
matter28 that the application for the review is based on the principle of legality
rather than PAJA.29 The Constitutional Court reiterated procedural differences
between the two types of review30 but conclude d that on the facts it was
unnecessary to pigeon -hole the review in one or the other of the two types
review.
23 Premier Mpumalanga, and Another v Executive Committee, Association of State -Schools, Eastern
Transvaal 199 9 (2) SA 91 (CC) at [36].
24 [1969] 2 Ch 149 (CA); [1969] 1 All ER 904. IN THIS REGARD Lord Denning observed
25 170 E-F at the Ch report and at 907 C at the All ER report.
26 2008 (6) SA 129 (CC).
27 2018 (3) SA 380 (SCA) at [38].
28 Under certain circumstances such as in the present instance.
29 See also Notyawa v Makhana Municipality and Others [2019] ZACC ..
30 At [35].
[28] In Judicial Services and Another v Cape Bar Council and Another31 it was held
that:
“…it has by now become axiomatic that the doctrine or principle of
legality is an aspect of the rule of law itself which governs the
exercise of all public power, as opposed to the narrow realm of
administrative action only. The fundamental idea expressed by the
doctrine is that the exercise of public power is only legitimate when
lawful.”
[29] Another important consideration in assessing whether the Report is reviewable
as an overreach of public power , and, therefore unlawful ,32 is whether Tshaka in
exercising his powers in terms of his appointment letter dated 23rd of August
2022 exceeded his powers.33
[30] From the nature and content of the Report the answer to the aforegoing must be
in the affirmative. It, however, is once again of minimal importance whether
Tshaka exceeded his powers or not; it is indisputable that his investigations
went much further than the investigative process envisioned in Viking Pony
Africa .34 He made definitive findings and pronounced on the culpability of the
Applicants.35
31 2013 (1) SA 170 (SCA) at [21].
32 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others 1999 (1) SA 374 (CC) at [56].
33 In other words, whether or not he acted within the powers lawfully conferred on him – Pharmaceutical
Manufacturers Association of SA and Another; in re Ex Parte President of RSA and Others 200 (2) SA
674 (cc) AT [20].
34 Supra at [38].
35 The facts of the present matter are therefore to be distinguished from those in National Treasury and
Another v Kubukeli [2016] 1 All SA 30 (SCA) particularly at [24] where it was stated that the power given
to National Treasury was not to investigate the conduct of any particular person and to make final findings
in respect thereof.
[31] I accordingly disagree with Counsel for the Respondents ’ contention that
Tshaka’s investigative functions “…did not include the determination of
culpability …”.
[32] The authorities relied upon on behalf of the Respondents are not applicable to
the specific facts of this case.36
[33] In the premises, the Report is procedurally tainted for the reasons set out above
and requires to be set aside.
MOOTNESS
[34] The Respondents contend that the issue of mootness arises by virtue of the fact
that the investigation has been completed. This is a startling proposition; the
natural consequence of such a submission is that no decision can ever be
reviewed because it has already been taken. Perhaps cynically one can only
ponder what the meaning of decisions such as Oude Kraal Estates (Pty) L td v
City of Cape Town37 and MEC for Health, Eastern Cape and Others v Kirland
Investments (Pty) Ltd t/a Eye and Laser Institute38 is.
[35] Secondly, and ancillary to the above, it is also alleged on behalf of the
Respondents that disciplinary proceedings have been instituted.
[36] Besides the fact that a Court has a discretion to hear a matter even although it is
moot39 the issue in the present matter is very much alive.
36 Cases relied on for instance are Viking Pony supra ; Langa CJ and Others v Hlope 2009 (4) SA 384
(SCA) and Kubukel i supra . Also relied upon by the Respondents was The Prudential Authority of South
African Reserve Bank v Mamphe Daniel Masiza and Another Case No A294/2021 Gauteng High Court,
Pretoria. Once again, the majority decision refers to a “…process of investigat ion which excludes a
determination of culpability, is unlikely to affect the rights of a person that has a direct external, legal
effect. ”
37 2004 ( 6) SA 222 (SCA).
38 2014 (3) SA 219 (SCA).
39 Tswana City v Nambiti Technologies 2016 (2) SA 494 (SCA) at [6].
[37] If the disciplinary proceedings do reconvene, the Report, undoubtedly will
feature as an exhibit and claim will be laid to its probative value. This will
adversely affect the Applicants’ rights.
[38] If the Report is set aside, however, it will have no e videntiary value and the
Applicants’ rights will not have been jeopardized. Another relevant consideration
is the present prejudice suffered by the Applicants who are in a state of
uncertainty as to their work functions and whether or not a disciplinary he aring
will be continued with or not. The delay in prosecuting the disciplinary enquiry
timeously is alarming.
[39] Whilst in such a state of flux, the Applicants face further prejudicial
consequences in respect of promotion , workplace and social stigma.
[40] Accordingly, the subject matter of the present application is not moot. A
judgment on the merits will indeed, if in favour of the Applicants, have a practical
effect.40
ORDER
[41] I therefore make the following order:
41.1 The investigation Report of Mr Tshaka, a Deputy Director: Security of the
Depart ment of Transport , Eastern Cape titled “ Investigation Report into
Alleged Fraudulent activities at Scholar -Transport” dated 28 October 2022
and the supplementary report thereto , dated 16 Jan uary 2023 , is reviewed
and set aside.
40 Molosi and Others v King Phahlo Royal Family and Others [2024] ZASCA 7 3. See also Habitat Council
v City of Cape Town 2022 (6) SA 383 (WCC) where the approach adopted by the Constitutional Court
towards mootness was reaffirmed - at [42] the Constitutional Court decision referred to is Normandien
Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation and Exploitation SOC Ltd
and Another 2020 (4) SA 409 (CC) [46] –[50].
41.2 The Respondents , jointly and severally , are ordered to pay the Applicants’
costs of the application including Counsel ’s fees on Scale C.
__________________
A BEYLEVELD
Acting Judge of the High Court of South Afric a
Date heard: 27 March 2025
Ex tempore delivered: 27 March 2025
Revised: 5 April 2025
Appearances:
For Applicant s: Adv. M. Salukazana , instructed by Sakhela Inc.
For Respondent s: Adv. L.L Ngumle , instructed by The State Attorney , East London