(1) REPORTABLE: YES / NO
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(2) OF INTEREST TO OTHER JUDGES~O
(3) REVISED
~
SIGNATURE
CASE NO. : 89658/2018
In the matter between:-
GREATER TAUNG LOCAL MUNICIPALITY
V
THE OFFICE OF THE PUBLIC PROTECTOR
THE PUBLIC PROTECTOR
THUSO BLOEM
Applicant
First Respondent
Second Respondent
Third Responde nt
89658/2018 2 JUDGMENT
Heard on: 3 June 2025
Delivered: 1 August 2025 -This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded to
the CaseLines system of the GD and by release to SAFLII. The date and
time for hand-down is deemed to be 14:00 on 1 August 2025.
Summary:
1. Mr Bloem's complaint to the Public Protector was that the Municipality, in
retaliation of the protected disclosure made, caused his suspension and later
his dismissal. He claimed to have suffered occupational detriment as
envisaged in Section 3 of the Protected Disclosure Act.
2. The two core issues for determination was whether the Public Protector had
jurisdiction to consider Mr Bloem's complaint and whether the remedial action
was lawful.
3. Applying the principles enunciated in Minister of Home Affairs and Another v
Public Protector of the Repub lic of South Africa 2018 (3) SA 380 SCA, this
court found that the Public Protector had jurisdiction in terms of Section 182(1)
of the Constitution to consider the complaint. The comp laint, in essence,
before the Public Protector was that Mr Bloem was prejudiced by the improper
conduct of the Municipality.
4. Mr Bloem chose to have his dispute resolved in terms of Section 4(1 )(b) of the
Protected Disclosure Act which provides for the dispute to be resolved through
"any other process allowed or prescribed by any law". The wide ambit of the
said provision does not oust the Public Protectors jurisdiction.
89658/2018 3 JU DG M EN T
5. The remedial action imposed should be appropriate, effective and address the
complaint in a meaningful way. The term "appropriate remedial action" as
envisaged in S182(1)(c) of the Constitution was defined in Economic Freedom
Fighters v The Speakers of the National Assembly 2016 (3) SA 560 CC.
Ultimately the Public Protector's role is to observe the constitutional values
necessary to ensure that a responsive remedial action, which in the true
sense, addresses the complaint.
ORDER
It is ordered:-
1. The application for review is dismissed with costs.
JUDGMENT
KOOVERJIE J
THE REVIEW APPLICATION
[1] In this review application the applicant, Greater Taung Municipality (the
Municipality) sought to set aside the Public Protector's findings and the remedial
89658/2018 4 JU DGME N T
action contained in Report Nr. 17 of 2018/2019 (the Report) on the basis that it is
unlawful, irrational and unreasonable. Hence it chalienged the Report on the
principle of legality.
[2] It is settled law that the Public Protector's exercise of her core powers and functions
may be reviewable on the principle of legality that stems from the founding
constitutional value of the rule of law.1 Hence the remedial action she directs
cannot be ignored. If a party is aggrieved with her findings, it may challenge same
by way of review, as in this case.
THE PARTIES
[3] This review application remains opposed by the third respondent Mr Bloem.
Although the first and second respondents (the Public Protector and her office) filed
their answering papers, they later withdrew from these proceedings. Mr Bloem filed
his response only after learning of the Public Protector's withdrawal from this
application. He thus seeks condonation for the lateness of his response to the
review.
THE MAIN CONTENTIONS BY THE MUNICIPALITY
[4] The main contentions raised by the Municipality in respect of the Report are that:
1 SAB S Soc Ltd and Others v Democ ratic A lliance and O thers 2016 (2) SA 522 SCA at 552H - 553H
89658/2018 5 JUDG M EN T
4.1 Mr Bloem's comp laint of being victimized for making the protected
disclosure was an afterthought and raised for the first time after his labour
court application was dismissed;
4.2 the Public Protector misdirected herself in entertaining Mr Bloem's comp laint
as only the labour court had jurisdiction to do so;
4.3 the Public Protector erred in her remedial action as it was not in compliance
with the Labour Relations Act 66 of 1995 (Labour Re lations Act).
TH E IS SUES FOR D ETER MINATION
(5] The crisp issues for determination before me are the following:
5.1 whether Mr Bloem's answering affidavit should be condoned;
5.2 whether the Public Protector had entertained Mr Bloem's complaint within
the stipulated time period as set out in Section 6(9) of the Public Protector
Act 23 of 1994 (Public Protector Act);
5.3 whether Mr Bloem's comp laint of being victimized for making protected
disclosures was an afterthought;
5.4 whether the Public Protector had jurisdiction to entertain Mr Bloem's
complaint;
5.5 whether the Public Protector's decision to order the reinstatement of Mr
Bloem w ith full backpay together with the interest was lawful and rational.
[6] It is a requirement of the rule of law that the exercise of public power by the
executive and other functionaries should not be arbitrary. Decisions must be
rationally related to the purpose for which the power was given, otherwise they are
89658/2018 6 JUDGM EN T
in effect arbitrary and inconsistent. It follows that in order to pass constitutional
scrutiny, the exercise of public power by the executive and other functionaries must
comply with this requirement. If it does not, it falls short of the standard demanded
by the Constitution for such action2.
BACKGROUND
[7] It is necessary to sketch the salient background that led Mr Bloem to the door of
the Public Protector. Mr Bloem was in the employment of the Municipality since
2003 commencing as a legal clerk and eventually a senior administration clerk. He
was also the shop steward of the South African Municipal Workers Union
("SAMWU "). In March 2011 Mr Bloem and SAMWU lodged a complaint of
corruption and fraud against the then Acting Municipal Manager. Mr Mofokeng. The
complaints included Mr Mofokeng's abuse of the Municipality funds, irregularly
awarding a tender and hiring a motor vehicle for his personal use at the expense of
the Municipality.
[8] This complaint was reported to the Municipal Council, who then took steps to
suspend Mr Mofokeng. Mr Mofokeng vehemently challenged his suspension and
continued with his duties as Acting Municipal Manager. In this time Mr Mofokeng
took steps to suspend Mr Bloem and eventually his employment was terminated
after a disciplinary enquiry. Mr Bloem approached the Labour Court for his
reinstatement. The Labour Court dismissed his application on a jurisdictional point.
2 Hoexer; Administrative Law in South Africa 2nd Edition, p. 158
89658/2018 7 JU DGME N T
Thereafter Mr Bloem did not proceed within his complaint in terms of the Labour
Relations Act. Instead he approached the office of the Public Protector on the
premises that he was subjected to occupational detriment due to the protected
disclosure made against Mr Mofokeng.
[9] Notably Mr Bloem was suspended by Mr Mofokeng for breaching certain provisions
of the Local Government Collective Bargaining Ag reement ("Agreement"). The
allegations levelled against him were inter alia that he made unauthorized use of
the municipality vehicle, he was absent from duty without leave or consent, he was
found in possession of a stolen computer, he disrupted the operations of the
Municipality by disturbing a meeting that was held by the Municipal Manager and
he disclosed false privileged information to a local community radio station.
CON DONATION
[1 O] The first issue for determination is whether the belated answering affidavit of M r
Bloem should be condoned. The nub of Mr Bloem's explanation was that he relied
on the Public Protector to oppose this matter due to his own financial constraints.
However, when he learnt that the Public Protector withdrew from this review, he
immediately took steps to obtain legal representation in order to oppose same.
Obtaining legal representation was a challenge since he did not have the financial
resources to do so. He explained that eventually the Platform to Protect
Whistleblowers in Africa ("PPLAFF ") agreed to take his matter on but only did so
on 19 September 2024. Thereafter, on 27 September 2024 the instructing attorney
filed a notice of intention to oppose on his behalf.
89658/2018 8 JUDGMENT
(11] The Municipality had, shortly before this hearing, filed legal submissions opposing
the condonation sought by Mr Bloem. However, such submissions are not aligned ·
to its response in its replying affidavit, which constitute mere denials. In my view,
the Municipality's attempt to oppose the condonation through submissions was
improper. It is settled law that the legal submissions can be advanced provided
that they are supported by the facts which are alleged on the papers.3
[12] In any event, Mr Bloem has to show good cause for the indulgence he seeks. Hence
a full and reasonable explanation for the delay must be forthcoming.
[13] The settled principles echoed by our courts when determining if good cause exists
includes the following:
13.1 the court's discretion is to be exercised judicially upon a consideration of all
the facts;
13.2 it is a matter of fairness to both sides;
13.3 the factors to consider would include the degree of lateness, the explanation
therefore, the prospects of success and the importance of the case;
13.4 these factors are not individually decisive, but are interrelated and must be
weighed against each other;4
13.5 a slight delay and a good explanation therefore may help to compensate for
prospects of success which are not strong, conversely very good prospects
3 Minister of Land Affairs and Agriculture v D & F Wevell Trust 2008 (2) SA 184 SCA at 200 8-D
4 Melan e v Santam Insurance Co Ltd 1962 (4) SA 531 A at 532 C-F
89658/2018 9 JUDGMENT
of success on appeal may compensate for the inadequate explanation for
the delay;5
13.6 without a reasonable and acceptable explanation for the delay, the
prospects of success are immaterial. No matter how good the explanation
for the delay, an application for condonation should be refused.6
[14] The "interest of justice" factor ma y also be taken into account. In SA Post Office
Ltd v CCMA [2012] 1 BLLR 20 LAC at par 23 the court stated: "In my view each
condonation application must be decided on its own facts bearing in mind the
general criteria. While the rules are there to be applied, they are not inflexible, but
the flexibility is already linked to and apportioned in accordance with the interests
of justice, prejudice, prospects of success and finally the degree of delay and the
explanation thereof ... "
[15] The concept "interest of justice" is elastic and thus not capable of a precise
definition. The ultimate determination for what is in the "interest of justice" would
be to consider all the relevant factors and the particular circumstances of each case
will determine which facts are relevant.7
[16] The Mu nicipality argued that the explanation for the delay was unreasonable. Its
ma in contention was that Mr Bloem was required to oppose this matter from the
5 Foster v Stewart Scott ( 1997) 18 ILJ 367 LAC at paragraph 369
6 National Un ion for Mineworkers v Co uncil for Mineral Technology 1998 ZALAC 22 at paragraph I O
7 Steenkamp & Others v Edcon Ltd 20 19 11 BLLR I 189 (CC) and paragraph 36
89658/2018 10 JUDGMENT
onset of the review proceedings. He was a cited party at all relevant times and
could not merely piggyback on the Public Protector's response.
[17] Prior to Mr Bloem's involvement, it was evident that this matter had dragged on
between the Municipality and the Public Protector. Although the replying affidavit
was filed in July 2019, the matter was not set down for hearing. It is evident that
when the Public Protector withdrew its defence on 22 October 2022, Mr Bloem had
no hand to play in this delay.
[18] Mr Bloem further explained that in this time he had approached various state
bodies to have his matter resolved. He communicated with not only the
Municipality, but the Department of Cooperative Governance, Human Settlement
and Traditional Affairs, Northwest Provincial MEC , Portfolio Committee on
Cooperative Governance Traditional Affairs and even Parliament.
[19] In the circumstances, I find that a sufficient and reasonable explanation was
furnished. Moreover, Mr Bloem's prospects of success are promising in this review.
His request for condonation is thus granted.
NON-COMPLIANCE WITH SECTION 6(9) OF THE PUBLIC PROTECTOR ACT
[20] The point raised was that Mr Bloem's comp laint was not lodged timeously with the
Public Protector. Although this defence was not raised in the papers, I deem it
appropriate under the circumstances to pronounce on this issue.
89658/2018 11 JUDGMENT
[21] Section 6(9) of the Public Protector Act stipulates:
"(9) Except where the Public Protector in special circumstances within his or her
discretion, so permits, a complaint or matter referred to the Public Protector
shall not be entertained unless it is reported to the Public Protector within
two years from the occurrence of the incident or matter concerned."
This provision requires that a complaint must be lodged with the Public Protector
within the stipulated two-year period. The Public Protector may , however, entertain
complaints if exceptional circumstances exist.8
[22] It is the Municipality's view that Mr Bloem's complaint was lodged with the Public
Protector (more than two years after he was dismissed), that is 13 April 2015. He
was dismissed on 9 November 2012.
[23] Mr Bloem contended that this was not the case. The Public Protector received Mr
Bloem's complaint prior to the expiry of the two-year period. In fact, reference was
made to the Public Protector's Report wherein it was indicated that the Public
Protector had consulted with Mr Bloem in April 2014. Paragraph 4.4.3.1 records:
"A meeting with the complainant on 7 April 2014 regarding the issues raised". It
was also recorded that Mr Bloem received his notice of dismissal on 23 September
2012. Paragraph 4.4.3.2 of the Report further records that after the meeting of 7
April 2014 "a follow-up meeting was held with Mr Bloem on 26 September 2014 to
clarify issues raised by him". In light of the established facts, this contention is
devoid of merit.
8
Minister of Hom e affairs and Another v Public Protector of the Republic of South Africa 20 18 (3) SA 380
(SCA) paragraph 24 (SCA matter)
89658/2018 12 JUDGMENT
PROTECTED DISCLOSURE COMPLAINT -AN AFTERTHOUGHT
[24] The further contention raised by the Municipality was that the protected disclosure
complaint was only raised before the Public Protector and not prior thereto. In
essence there was no link between the disclosure made and the occupational
detriment. Hence the misconduct charges which led to his dismissal, had nothing
to do with the protected disclosure made.
[25) It was explained that in the proceedings that led to Mr Bloem's suspension, via the
disciplinary hearing, and later the Labour Court, Mr Bloem did not complain that the
charges of misconduct levelled against him and his subsequent dismissal
amounted to occupational detriment in terms of the Protected Disclosure Act. His
case was never that he was improperly suspended and dismissed in retaliation of
the protected disclosure made against Mr Mofokeng.
[26] Mr Bloem refuted this point. He referred to his statement of claim before the Labour
Court, where he pointed out that he addressed the issues with various government
institutions9; Prior to the institution of the proceedings in the Labour Court. Mr
Bloem (as part of the SAMWU delegation) was consulted with on the issue of the
protected disclosure made against Mr Mofokeng. Mr Bloem specifically alleged that
he and other SAMWU members were suspended due to the protected disclosure
9 It was alleged on or during the beginning of2019, SAMWU under the leadership on Mr B loem laid a
complaint with Council of the Region and other various governmental institutions such as the Depa rtment of
Local Government and Traditional Affairs, The Public Protector and the South African Police Services, of
amongst others, corruption malpractice and non-compliance w ith Su pply Chain Policy
89658/2018 13 JUDGMENT
made against Mr Mofokeng; Mr Bloem in fact presented such correspondence to
the Public Protector.
[27] The Public Protector was well aware of the said issue raised by the Municipality.
She concluded that the Municipality was indeed awa re of the protected disclosure
made . At paragraph 5.1.9 she noted:
"The complainant argued that the information about Mr Mofokeng's unlawful and
irregular conduct was brought to the municipal's attention before any action was
taken out against him by Mr Mofokeng. Such information was therefore disclosed
to the employer in good faith". Furthermore, Mr Mofokeng became aware of the
disclosure of the information upon receipt of intention to suspend notice date 11
May 2011.
[28] At para 5.1.17 she expressed:
"The Municipality, in essence, never disputed that the Complainant made a
protected disclosure, but that he should have raised the issue of whistleblowing
with a court of law. Nowhere in the response does the Municipality touch on the
alleged corrupt activities by Mr Mofokeng... The Municipality was aware of the
a/legation levelled against Mr Mofokenq and nothing seems to have been done
about that.
[29] Having considered the evidence placed before her, the Public Protector confirmed
the link between the disclosures made and the dismissal of M r Bloem. At paragraph
5.1.29 she concluded: "As a result of the above, having taken into account the
timing of the charge or the occupational detriment, the reasons given by the
89658/2018 14 JUDGM EN T
employer, the nature of the disclosure and the person responsible for taking the
decision to institute the charges, it is evident that the Complainant's disclosure of
such information to the Council falls under the definition of a protected disclosure
as envisaged in Section 1 of the Protected Disclosure Act.
[30] Her findings were that: the Municipality was expected to ensure that the
comp lainant did not suffer any occupational detriment; Mr Bloem was suspended
after Mr Mofokeng learnt of the protected disclosure made. His dismissal was in
violation of Section 3 of the Protected Disclosure Act. The Municipality was
required to comply with the provisions of the Protected Disclosure Act by ensuring
that the complainant was not subjected to any occupational detriment by his
employer on account of having made such protected disclosure.
[31] Consequently this point is also meritless.
JURISDICTION OF THE PUBLIC PROTECTOR
[32] It is not in dispute that the complaint lodged with the Public Protector was one that
fell within the purview of Section 3 of the Protected Disclosure Act 26 of 2000
(Protected Disclosure Act). Mr Bloem complained that the Municipality had
improperly suspended and later dismissed him in retaliation of the protected
disclosure regarding suspected corruption, conflict of interest, maladministration
and related procurement irregularities within the Municipality by the former
Municipal Manager; Mr Mofokeng, which amounted to occupational detriment as
envisaged in the said Protected Disclosure Act.
89658/2018 15 JUDGMENT
[33] Hence in her Report the Public Protector defined the specific issue for
determination to be: w hether the comp lainant suffered prejudice as a result of the
conduct of the Municipality in the circumstances10 . She acknowledged that the
conduct of the M unicipality amounted to a contravention of Section 3 and therefore
the Section 4 remedies of the Protected Disclosure Act were applicable. She further
expressed that the remedial action would be imposed in terms of Section 182(1) of
the Constitution.
[34] The parties however part ways regarding the processes that had to be followed to
resolve Mr Bloem's dispute and further the Municipality submitted that the remedial
action imposed was unlawful.
[35] The Municipality's ma in gripe was that although the Public Protector was
empowered to investigate the matter in terms of her wide powe rs as contemplated
in Section 182 of the Constitution, she could not ignore the application of the Labour
Relations Act which was designed to appropriately deal with Mr Bloem's comp laint.
[36] On this issue, the Municipality's main contentions were that:
36.1 the Protected Disclosure Act made provision for Mr Bloem's complaint to be
dealt with in terms of the processes set out in the Labour Relations Act;
36.2 Mr Bloem was bound to Section 4(2)(a) of the Protected Disclosure Act. The
dismissal constituted an automatically unfair dismissal as contemplated in
10 Par 4.3.1 and 4.3.2 of the Report
89658/2018 16 JUD GMENT
Section 187 of the Labour Relations Act11 which required that the dispute be
resolved in terms of Sections 181 to 191 of the Labour Relations Act.
36.3 More specifically in terms of Section 191 (4) of the Labour Relations Act,
once a dispute of unfair dismissal has been referred to the Bargaining
Council, an attempt must be made to resolve the dispute through
conciliation. In the event that conciliation is not successful, the dispute
should then be referred to the Labour Court;
36.4 Furthermore the specific time limits set out in the Labour Relations Act had
to be adhered to. In Mr Bloem's case, it was pointed out that his opportunity
to timeously place the dispute before the Bargaining Council had lapsed.
The Public Protector should have taken cognisance of this fact.
[37] In my view, the appropriate starting point would be to understand the wide ambit
of the Public Protector's powers as envisaged in Section 182(1) of the
Constitution, and the Public Protector Act. In Economic Freedom Fighters v
Speaker of the National Assembly; Democratic Alliance v Speaker of the
National Assembly 2016 (EFF matter)12 at paragraph 66 the court expressed:
"the language, context and purpose of Section 181 and 182 of the Constitution
give reliable pointers to the legal status or effect of the Public Protector's power to
take remedial action that the Public Protector is required to be independent and
subject only to the Constitution and the law, to be impartial and exercise her
11 Section I 87(l)(b) of the Labour Relations Act stipulates that the dismissal of an employee is automatically
unfair if the dismissal was due to a contravention of the Protected Disclosure Act.
Section 3 of the Protected Disclosure Act stipulates: "No employee may be subjected to any occupational
detriment by his/her employee on account or partly on account of having made a protected disclosure".
12 2016(3) SA 580 CC (EFF matter)
89658/2018 17 JUDGM ENT
powers and perform without fear, favour or prejudice is quite telling that the
Constitution requires the Public Protector to be effective and identifies the need
for her to be assisted and protected, to create a climate conducive to
independence , impartiality, dignity and effectiveness shows just how potentially
intrusive her investigation powers are and how deep the remedial powers are
expected to cur'.
[38] Section 182(1) of the Constitution vests the Public Protector with wide powers as
• regulated by national legislation to:
"(a) Investigate any conduct in state affairs or in the public administration
in any sphere of government that is alleged or suspended to be
improper or result in any impropriety or prejudice;
(b) report on that conduct; and
(c) take appropriate remedial action".
[39] The Public Protector is further endowed with additional powers in terms of Section
6(4) of the Public Protector Act, namely
"(a) to investigate on his or her own initiative on or receipt of a complaint,
any alleged-
(i) maladministration in connection with the affairs of Government at
any level;
(ii) abuse or uniustifiable exercise of power or unfair or other
(iii)
improper conduct or undue delay by a person performing a public
function:
89658/2018 18 JUDGMENT
(iv)
(v) act or omission by a person 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
person13
[39) The office of the Public Protector is a unique institution designed to strengthen our
constitutional democracy. Her wide powers must further be considered in context
of Section 4(1) of the Protected Disclosure Act which stipulates:
"Any employee who is subjected or may be subjected, to an occupational
detriment in breach of Section 3, or anyone acting on behalf of an employee
who is not able to act in his or her own name may:
(a) approach any court having jurisdiction, including the Labour Court
established by Section 151 of the Labour Relations Act, 1995 (66 of
1995) for an appropriate relief,· or
(b) pursue any other process allowed or prescribed by any /aw".14
[40) I am in agreement with Mr Bloem's argument that he was not bound to have his
dispute resolved in accordance w ith the labour legislation and the processes set
out therein. By approaching the Office of the Public Protector, Mr Bloem sought an
alternative process as envisaged in Section 4(1 )(b) of the Protected Disclosure Act,
namely (b) "pursue any other process allowed or prescribed by any law".
13 My emphasis
14 My emphasis
89658/2018 19 JUDGM E NT
[41] Consequently, I am of the view that Section 4(2) of the Protected Disclosure Act
would only find application if Mr Bloem sought to have his dispute resolved in terms
of Section 4(1 )(a), that is "approach any court having jurisdiction, including the
Labour Court established by Section 151 of the Labour Relations Act 1995 (Act 66
of 1995) for appropriate relief'.
[42] Section 4(2)(a) stipulates:
"(2) For the purposes of the Labour Relations Act 1995, including the
consideration of any matter emanating from this Act by the Labour Court:
(a) any dismissal in breach of Section 3 is deemed to be an automatically
unfair dismissal as contemplated in Section 187 of that Act and the
dispute about such a dismissal may follow the procedure set out in
Chapter VIII of that Act or any other process to recover damages in
a competent court ...
(b) any other occupational detriment in breach of Section 3 is deemed
to be an unfair labour practice in Section 186(2) of that Act, and the
dispute about such an unfair labour practice must follow the
procedure set out in Section 191: Provided that if the ma tter falls to
be resolved through conciliation, it may be referred to the Labour
Court for adjudication."
[43] In my view, the wide context of Section 4(1 )(b) of the Protected Disclosure Act,
does not oust the Public Protector's jurisdiction to consider the complaint. His
comp laint was defined by the Public Protector to be -that he had been prejudiced
89658/2018 20 JUDGMENT
by the improper conduct of the Municipality. This was well within the purview of her
powers in terms of Section 182(1 )(a) and Section 6(4)(v) of the Public Protector
Act.
(44] The nature of her wide powers was succinctly outlined by the Supreme Court of
Appea l in Minister of Home Affairs v Public Protector.15 In particular that the
Public Protector is not ousted from dealing with complaints relating to unfair labour
practice. It expressed:
"This attack has two legs. The first is that because Marimi's complaint was that he
was the victim of an unfair labour practice, he had to seek his remedy in the Labour
Relations Act 66 of 1995: in the same way as the Labour Court had exclusive
jurisdiction in labour matter at the expense of the High Courts, so too the Public
Protector's jurisdiction was ousted in this case. There is no merit in the argument.
The Public Protector is not a court, does not exercise iudicial power and cannot be
equated with the court. Her role is completely different to that of a court and the
iurisdictional arrangements of the courts are entirely irrelevant to the determination
of the Public Protector's iurisdiction. It is necessary to look to Section 182 of the
Constitution and the Public Protector Act to ascertain the bounds of the Public
Protector's jurisdiction. Neither excludes labour matters from her iurisdiction. "16
is 2018 (3) SA 380 (SCA ) at par 44 (Home Affairs SC A matter)
16 My emphasis
89658/2018 21 JUDGME N T
[45] The court a quo's17 similarly articulated that there is no provision in the Constitution
or the Public Protector Act that circumscribed the jurisdiction of the Public Protector.
The court expressed:
"The powers of the Public Protector are extremely wide and she is compe tent 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 to 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 particularly alleged
maladministration or misconduct fall within the iurisdiction of a certain court rather
than that of the Public Protector despite the wide powers ordained by the
Constitution. "18
[46] The Su preme Court of Appeal in Home Affairs, emphas ized that the Public
Protector Act widens the Public Protector's mandate even more, extending the
Public Protector's remit in investigation of maladministration and similar maladies
in respect inter alia the affairs of government at any level. 19
17 Minister of H om e Affairs v the Public Protector case number 76554/201 3, Ga uteng Division 20/10/16 at
paragraph 57 page 39, (High Co urt ma tter)
18 My emphasis
19 Home Affairs (SCA m atter) paragraph 45
89658/2018 22 JUDGMENT
[47] I reiterate that the complaint was one of prejudice due to the protected disclosure
made against the Municipal Manager which eventually resulted in his dismissal.
Similarly, in the Home Affairs matter, Marimi's complaint was that he had been
prejudiced by the Department's maladministration which resulted in him not
receiving his living benefits.
[48] In this instance the Public Protector found that the Municipality had subjected the
complainant to occupational detriment which was in violation of Section 3 of the
• Protected Disclosure and such conduct constituted unfair labour practice and unfair
dismissal.
[49] In fact the Public Protector was well versed with the extent of her powers and set
them out in her Report. No doubt, her jurisdiction is extremely wide and her
mandate is clear. Her core role is to seek out maladministration, through directing
appropriate remedial steps so as to ensure good governance. She therefore holds
a w ide discretion to enable her to carry out her functions.20
[50] The Public Protectors discretion in terms of Section 6(3) of the Public Protector Act
was also clarified. The fact that the Public Protector has a discretion not to entertain
matters, particularly if she is of the view that internal remedies as contemplated in
Section 6(3) were not exhausted. In this regard, she again has a wide discretion.
She may decline to consider a complaint if she has reason to do so. The
acceptance of a complaint is however the default position. 21
20 Home Affairs (SCA matter) paragraph 46
21 Hom e Affairs (SCA matter) at paragraph 46
89658/2018 23 JUDGMENT
[51] Aligned with the principles established in the Home Affairs matter, there can be no
doubt that the Public Protector had jurisdiction to consider Mr Bloem's complaint.
THE REMEDIAL ACTION
[52] The final contention w as in respect of the Public Protector's overreach when she
imposed the remedial action. The following remedial action was imposed on the
Municipality Manager and the Mun icipality:
"7. 1 The Municipal Manager
7.1.1 The Municipal Manager must, within 30 days from the date of this
report, ensure that the complainant is reinstated to the same position
or similar position he held prior to his dismissal.
7. 1. 2 The Municipal Manager must, within 60 days from date of this report,
ensure that that Complainant is paid all remuneration that would have
accrued to him had he not been dismissed, having taken into account
the annual increase together with the interest calculated at the
applicable rate as prescribed by the Minister of Justice and
Constitutional Development in terms of section 1 (2) of the
Prescribed Rate of Interest Act No. 55 of 1975.
7. 1. 3 The Municipal Manager must, within 30 working days from the date
of this report, write a letter of apology to the Complainant for the
prejudice caused to him and his family.
89658/2018 24 JUDGMENT
7.1.4 The M unicipal Manager must, within 15 working days from the date
of publication of this report, ensure that this report is tabled before
the Municipal Council.
7.2 The Greater Taung Local Municipal Council
7.2.1 The Municipal Council must, within 60 days of publication of this
report, ensure that it has measures in place to deal with employees'
disclosures. These procedures should be set out in a Municipal
Policy which should be made available to all its employees. The
purpose of the said whistleblowing policy should ultimately be to
create a culture of openness and accountability without fear of
reprisals or occupational detriment to ensure that employees report
knowledge of any irregularities so that management can take the
necessary steps to investigate and/or deal with those irregularities
identified.
7. 2. 2 The Municipal Council must, within 60 working days of publication of
thus report, institute civil action against all municipal officials,
whether still in the employ of the Municipality or not, to claim this
wasteful expenditure to be incurred by the State in reimbursing the
Complainant."
[53] The P ublic Protector found that the Municipality was guilty of unfair labour practice
and unfair dismissal and ordered it to reinstate Bloem in his position or in a similar
position that he was in prior to his dismissal, together with full backpay plus interest
89658/2018 25 JUDGMENT
for the entire period that he was not in employment. In her reasons she explained
that Mr Bloem suffered not only financial prejudice, but emotional prejudice as we ll.
[54] The Municipality took specific issue with the portion of the remedial action that
directed the Municipality to reinstate Mr Bloem to the same position or similar
position he held prior to his dismissal. The Municipality argued that these findings
we re not only irrational but unlawful. The Public Protector could not ignore the
provision of Section 193 of the Labour Relations Act which prescribed the
processes available to Mr Bloem and the Municipality. It further argued that ordering
reinstatement of an emp loyee with the inclusion backpay, was unlawful. Moreover,
the backpay could not be subject to interest in terms of the Prescribed Rate of
Interest Act 55 of 1975 as it does not constitute a judgment debt.
(55] Section 193(1 )(a) to (c) of the Labour Relations Act stipulates:
"If a labour court or arbitrator appointed in terms of this Act finds that a dismissal is
unfair, the court or the arbitrator may:
(a) order the employer to reinstate the employee from any date not earlier than the
date of dismissal;
(b) order the employer to re-employ the employee, either in the work in which the
employee was employed before the dismissal or in other reasonably suitable
work on any terms from any date not earlier than the date of dismissal; or
(c) order the employer to pay compensation to the employee."
89658/2018 26 JU DGM ENT
[56] It was further highlighted that Section 193(2) of the LRA made provision for just and
equitable relief.22 It weighs the option of reinstatement or re-employment. In this
instance the employer is required to re-employ the employee unless the employee
does not wish to be reinstated or re-employed. If circumstances around the
dismissal are such that a continued employment relationship would be intolerable
then it would not be reasonably practicable for the employer to reinstate or re
employ the employee. And so it was argued that the Public Protector was required
to ventilate the issue of reinstatement with the parties.
[57] To bolster its point, I was referred to the South African Revenue Service v the
CCMA matter23 where the court held that the arbitrator should have followed the
provisions in Section 193(2)24 when considering reinstatement.
[58] In my view, the analogy drawn against the powers of the arbitrator and the
processes set out in S193(2) of the Labour Relations Act are flawed. It is settled
law that the Public Protector is not a court of law and cannot be compared to an
22 Section 193(2) stipulates:
"The labour court or the arbitrator mu st require the employer to reinstate or re-employ the emp loyee
unless the
(a) employee does not wish to be reinstated or re-employed
(b) .. the continued employment relationship would be untenable
(c) it is not reasonably practical for the employer to reinstate or re-employ the employee or
(d) the dismissal is unfair only because the emp loyer did not follow fair procedure
23
South African Revenue Service v Commission for Conciliation Mediation and Arbitration and Others 2017 (I)
SA 549 (CC)
24
"44. After concluding that Mr Kruger's dismissal was unfair, the arbitrator immediately ordered his
reinstatement without taking into account the provisions of Section 193(2). She was supposed to consider
specifically the provisions of Section 193(2) to determine whether this was perhaps a case where reinstatement is
precluded. She was also obliged to give reasons for ordering SARS to reinstate Mr Kruger despite its contention
and evidence that its continued employment would be intolerable. She be required to say whether she consider
Mr Kruger's continued employment to be tolerable and if so, on what basis. This was not done. She does not
even seem to have considered whether the seriousness of the misconduct and its potential impact in the
workplace, were not such as to render reinstatement appropriate ... "
89658/2018 27 JUDGMENT
arbitrator who was subjected to apply Section 193 of the Labour Relations Act. Her
role is com pletely different and she is only bound by the Constitution and the P ublic
Protector Act. By virtue of Section 182 (1 )(c) of the Constitution she is required to
take appropriate remed ial action.
[59] The concept "appropriate remedial action" as envisaged in Section 182(1 )(c) of the
Co nstitution was articulated by the Constitutional Court in the EFF matter.25 whe re
the court expressed:
"The Public Protector's power to take appropriate remedial action is wide but
certainly not unfettered... It is also not inflexible in this application but situational.
What remedial action to take in a particular case will be informed by the subject
matter of the investigation and the type of findings made. Of cardinal significance
about nature, exercise and legal effect of the remedial power are the following:
(a) The primary source of the power to take appropriate remedial action is a
supreme law itself whereas the Public Protector Act is but a secondary
source ...
(c) Implicit in the words "take action" is that the Public Protector is herself
empowered to decide on and determine the appropriate remedial measure.
And action presupposes, obviously where appropriate, concrete or
meaningful steps. Nothing in these words suggests that she necessarily has
to leave the exercise of the power to take remedial actions to other
institutions or that it is the power that is by its nature of no consequence.
25 Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC) at paragraph 71
89658/2018 28 JUDGMENT
(d) She has the power to determine the appropriate remedy and prescribe the
manner of its implementation.
(e) "Appropriate" means nothing less than an effective, suitable ,proper or fitting
to redress or undo the preiudice, impropriet'l unlawful enrichment or
corruption in a particular case. "26
(60] It is evident that the aforesaid reasoning endorses the proposition that the remedial
powers of the Public Protector are not constrained by the processes set out in the
Labour Relations Act.
[61] The Municipality further attempted to contest the Public Protector's powers by
referring to the SARS matter.27 The issue before the court was whether SARS or
its officials were by law permitted and required, in terms of Section 11 (3) of the
Public Protector Act read with Section 69(1) of the Tax Administration Act 28 of
2011, to withhold taxpayer information or whether the Public Protector's subpoena
powers in terms of the Public Protector Act was superior to the Tax Administration
Act.
[62] Again said matter is clearly distinguishable in that the court was seized with having
to consider the Public Protector's powers in terms of the Public Protector Act (more
specifically Section 11 (3)) thereof against the provisions of the Tax Administration
Act. The court criticized the Public Protector for demanding the taxpayer's
confidential information which was contrary to the Tax Administration Act. The
26 My emphasis
27 Commissioner of South African Revenue Service v Public Protector and Others 2020 (4) SA 133 GP
89658/2018 29 JUDGMENT
court expressed that her request in the subpoena was unlawful in terms of the tax
legislation.
[63] That court therein expressed that in terms of the Public Protector Act, the Public
Protector was required to comply with the provisions of Section 2 of the
Constitution. The Public Protector had a constitutional obligation to ensure that her
conduct does not offend the Constitution and the law. She does not have more
powers than what the Constitution and national legislation conferred on her, in that
case, the Tax Administration Act.
[64] On the facts before me, the specific issue is whether the Public Protector had
jurisdiction to consider the complaint and ultimately whether the remedial action
imposed by the Public Protector was appropriate and effective.
[65] In the EFF matter28 It was emphasized that "take appropriate remedial action" and
"effectiveness" are operative words essential for the fulfilment of the Public
Protector's constitutional mandate. It upheld the sentiments expressed in Fose 29
where the court expressed:
"(A)n appropriate remedy must mean an effective remedy for without effective
remedies for breach, the values underlying and the rights entrenched in the
Constitution cannot properly be upheld or enhanced. Particularly in a country
where so few have the means to enforce their rights through the courts. It is
28
Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 CC at par 67 (EFF matter)
29 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) at par 69 (my emphas is)
89658/2018 30 JUDGMENT
essential that on those occasions where the legal process does establish that an
infringement of an entrenched right has occurred, it be effectively indicated."
[66] I reiterate that complaints are lodged with the Public Protector to cure incidents of
impropriety, prejudice, unlawful enrichment or corruption in government institutions.
The Public Protector's role is to observe the constitutional values necessary to
ensure that the efficient economic and effective use of resources are promoted, to
hold those accountable and maintain the ethical standards. To achieve this requires
a difference making and "responsive remedial action". The remedy must in the true
sense, address the complaint in a meaningful way 30.
[67] In her Report, the Public Protector acknowledged the extent of the remedy she
could impose when she expressed "where a complainant has suffered prejudice
the idea is to place him or her as close as possible to where they would have been
had the state institution complied with the regulatory framework setting the
applicable standard for good administration"
[68] It cannot be gainsaid that the Public Protector considered all the relevant factors
including the fact that the Municipality was aware of the protected disclosure made.
She also noted that the Municipality failed to act on Mr Bloem's complaint pertaining
to his dismissal as a consequence of the protected disclosure. She also consulted
with the Municipality before she made her findings31 . In conclusion, I therefore find
30 EFF matter at paragraph 65
31
Section 7(9)(a) of the Protected Disclosure Act obliges the Public Protector to afford a hearing to persons
implicated in the investigation. lt provides that if it appears to the Public Protector during the course of an
investigation that any person implicated in the matter and that such implication may be to the detriment of that
89658/2018 31 JUDGME N T
that the exercise of her power and the remedial action she ordered were both
rational and lawful.
[69] In Simelane32 the court held that not only the decision itself but also the process
by which it is made must be rational, this bringing in the idea of procedural as well
as substantive rationality. As the court put it:
"We must look at the process as a whole and determine whether the steps in the
process were rationally related to the end sought to be achieved and if not, whether
the absence of a connection between a particular step is so unrelated to the end
as to taint the whole process with irrationality."
COSTS
[70] The applicant submitted that in the event that it is successful, the Public Protector
should be ordered to pay the costs of this application. The third respondent, Mr
Bloem, also sought costs in the event of him being the successful party.
[71] In exercising my judicial discretion there is no reason why the general principle: that
costs should follow the result, should not be applied. Since Mr Bloem has been
successful in this review. I find that the Municipality should bear the costs of this
application.
person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such the
person an opportunity to respond in correction thereof ...
32 Democ ratic Alliance V President of the R epublic of So uth Africa 2013 (I) 248 CC at paragraph 37 (Simelane
ma tter)
89658/2018 32 JUDGMEN T
[72] In conclusion, this review application is dismissed with costs.
Appearances:
Counsel for the applicant:
Instructed by:
Counsel for the third respondent:
Instructed by:
Date heard:
Date of Judgment:
~ IE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Adv. T J Machaba SC
Adv. BO Tshabala/a
Kgomo Attorneys
Adv. Matthew Chaskalson SC
Mbuyisa Moleele Attorneys
3 June 2025
1 August 2025