REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA


Case Number: 34177/22



In the matter between:




In the matter between:


NONTSASA MEMELA Applicant


and

THE CHAIRPERSON OF THE STATE CAPTURE

COMMISSION OF INQUIRY First Respondent

THE STATE CAPTURE COMMISSION OF INQUIRY Second Respondent

PRESIDENT OF THE REPUBLIC OF

SOUTH AFRICA Third Respondent

Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 14 August 2025.

(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ _________________________
DATE SIGNATURE

2

Summary: Application to judicially review certain findings and
recommendations of a commission of inquiry. The chairperson of the
commission of inquiry is a judicial officer of a superior Court. The review
application was launched without the consent of the head of Court. The
respondents contend that this Court lacks jurisdiction to entertain the judicial
review application in the absence of the consent of the head of Court to institute
the review application, particularly as against the chairperson of the
commission of inquiry . Section 47(1) of the Superior Courts Act properly
interpreted does not oust the jurisdiction of this Court. This Court retains
jurisdiction in terms of section 169(1) of the Constitution . The judicial officer
was cited in his capacity as chairperson of the commission and not as a judicial
officer. The functions he performed were governed by the Commissions Act and
were not judicial in nature. The provisions of section 47(1) do not apply to those
functions. Accordingly, the applicant did not require consent of the head of the
Constitutional Court to launch a judicial review against the findings and
recommendations of the chairperson of the commission.

An a pplication for a postponement is not there for the mere taking. Absent
proper grounds, a Court in the exercise of its true discretion must refuse a
postponement application.

This being a legality review, the applicant must demonstrate that the findings
and the recommendations are reviewable in law and that they are (a) unlawful;
(b) irrational; or (c) arbitrary. The applicant failed to demonstrate that the
impugned findings and recommendations are reviewable in law; unlawful;
irrational or arbitrary. The appropriate standard of review in respect of findings
and recommendations of a commission of inquiry has not been properly
pleaded nor demonstrated. The review application falls to be dismissed.

Regarding costs, the applicant must bear the costs of the failed postponement

Regarding costs, the applicant must bear the costs of the failed postponement
application as well as the costs attendant to the review application. The present
application is not one that required the employment of two counsel. However, it
is a matter that deserve d the employment of one senior counsel. Accordingly,
the costs will include the costs of employing one senior counsel.

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Held: (1) The application for postponement is dismissed. Held: (2) The
application for review is dismissed. Held: (3) The applicant must pay the costs
attendant to the postponement application and the review applicatio n at the
scale of party and party taxable or to be settled at scale C, which costs include
the employment of one senior counsel.


JUDGMENT
MOSHOANA, J


Introduction
[1] The State Capture Commission of Inquiry (SCC) captivated the attention of many
South Africans as well as the world over . Most South Africans were religiously
glued to their television sets for a considerable period to witness telling
revelations involving their beloved country. Ultimately, after days of revelations,
the chairperson of the SCC, in the name of the then Honourable Deputy Chief
Justice RMM Zondo presented his report, which contained findings and
recommendations to the President of the Republic of South Africa. Several
individuals were implicated in the findings made by the SCC. The applicant , Ms
Nontsasa Memela, was one of the individuals against whom findings were made
and recommendations were proposed.

[2] Chagrined by those findings and recommendations, the applicant launched the
present application seeking a n order setting aside the findings and
recommendations made in Part 1 Volume 1 , dealing with the South African
Airways and its Associated Companies , of the SCC report. The application is
opposed by the cited chairperson and the SCC (“hereinafter jointly referred to as
respondents”). Surprisingly, the bodies to whom the recommendations of the
SCC are made were not joined in the present proceedings. That b eing the
National Prosecuti ng Authority (NPA) and the South African Legal Practice

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Council (SALPC). This simply implies that there is nothing prevent ing the NPA
and the SALPC from actioning the recommendations of the SCC.

[3] On 11 July 2025, the applicant, who is allegedly severely prejudiced by the
findings and recommendations of the SCC , sought a postponement of the
present application, which was effectively ripe for a hearing in that all the relevant
heads of argument s were submitted. Barring the President of the Republic of
South Africa, t he application was opposed by the respondents. The present
application was set down on the opposed roll of 4 August 2025. As the allocated
judicial officer, I allocated the present applica tion for oral hearing on 5 August
2025. At the commencement of the hearing, Mr Hugo, who emphatically stated
that he was only briefed to move the postponement application and not to make
submissions on the merits of the review application , sought a postponement of
the review application. True to course, Mr Hugo sought to be excused after this
Court issued an ex-tempore ruling refusing a postponement application , to be
reasoned in this judgment.

[4] Owing to the departure of Mr Hugo, this Court had to rely on the already
submitted heads of argument by Mr Hodes SC on behalf o f the applicant. Ms
Hofmeyer SC orally defended the heads of argument submitted on behalf of the
respondents. I pause to mention that ordinarily, motion proceedings may be
disposed of without oral submission in an instance where heads of arguments
are at hand. At best, there was nothing that would have prevented Mr Hugo to
have read into the record, as it were, the heads of argument drafted and
submitted by Mr Hodes SC. The applicant was apparently indisposed and sought
to be excused from attending the proceedings.

Brief relevant factual matrix
[5] As a precursor, it is recorded that this case is not about rehashing the evidence
extensively processed at the SCC. Thus, only the brief facts relevant to the

extensively processed at the SCC. Thus, only the brief facts relevant to the
present review application shall be narrated for the purposes of this judgment. It
suffices to mention that the applicant seeks to review and set aside findings and
recommendations outlined in paragraphs 1094 to 1105 in the first part of the SCC
report dated 4 January 2022. It is unnecessary for purpose s of this judgment to

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regurgitate those paragraphs. The applicant has annexed an extract thereof to
the founding affidavit. To regurgitate the paragraphs will serve no useful purpose
but to elongate this judgment.

[6] Since 15 April 2013, the applicant had been employed by the South African
Airways Technical (SAAT). She was employed in the capacity of a Senior Legal
and Contracts Management Specialist. In October 2014, she took the role of
Head of Procurement. Following a restructuring process , her title changed to
Head of Supply Chain Management (SCM). In this role , she reported directly to
the CEO of SAAT. She had about six portfolios reporting to her. In the main, the
department she headed was responsible for ensuring that aircraft spares were
always available.

[7] In May of 2018, she was placed on a precautionary suspension pending the
outcome of a disciplinary hearing. Such a disciplinary hearing was conducted
whereat she was found guilty as charged. At the end of 2018, she was dismissed
from the employ of the SAAT. Aggrieved by the unfairness of her dismissal, she
approached the CCMA and lodged an unfair dismissal claim against the SAAT.
The CCMA found that her dismissal was both substantively and procedurally
unfair and ordered the SAAT to compensate and reinstate her. She however ,
opted not to take the reinstatement relief issued to her.

[8] Around November 2019, she was contacted by the investigators of the SCC.
They informed her that they were investigating transactions concluded between
the South African Airways (SAA) and the SAAT. She cooperated and gave
information regarding four transactions. Those were in relation to (a) the disposal
of Ground Power Units (GPUs); (b) the components tender; (c) the tyre tender;
and (d) the logistical tender. She provided them with information within her
knowledge. In the process, she was questioned about the R2 500 000 that was
paid to her alleged transferring attorneys, Mbanjwa Attorneys Inc (Mbanjwa).

paid to her alleged transferring attorneys, Mbanjwa Attorneys Inc (Mbanjwa).

[9] She met with the investigators again on 6 December 2019 and provided the same
information she provided before. Ultimately, she received a notice to appear

6

before the SCC for the purposes of giving evidence. She complied with the notice
and appeared on 7 February 2020. For the period of appearance s after 7
February 2020, she enlisted the services of Mbanjwa to represent her.

[10] After tendering her evidence, as indicated above, a report containing certain
findings and recommendations against her was made known. She was aggrieved
by those findings and recommendations. Resultantly, on or about 27 June 2022,
she launched the present application.

Grounds of review
[11] The applicant raised a barrage of grounds for review. In the main, she griped that
the SCC’s findings and recommendations were unreasonable, irrational, and
unfair. In her founding affidavit , she dissected each of the findings and
recommendations and criticised them. In the whole, she suggested that those
findings were factually wrong and otherwise. At the end of her founding affidavit,
she attenuated the criticism by alleging that the impugned findings and
recommendations ought to be reviewed and set aside in that they are (i) irregular;
(ii) irrational; (iii) unfair; and (iv) are bereft of factual and legal basis.

Analysis
[12] In considering the present application, this Court keeps in mind what was said in
Canada (AG) v Canada (Commission of Inquiry on the B lood System) (Blood
Systems)1, where the following was stated:
“A commission of inquiry is neither a criminal trial nor a civil action for the
determination of liability. It cannot establish either criminal culpability or civil
responsibility for damages. Rather, an inquiry is an investigation into an issue,
event or series of events. The findings of a commissioner are simply findings
of fact and statement s of opinion reached by the commissioner at the end of
the inquiry. They are based upon and flow from a procedure which is not bound
by the evidentiary and procedural rules of a courtroom. There are no legal
consequences attached to the determinations of a commissioner. They are not

consequences attached to the determinations of a commissioner. They are not
enforceable and do not bind courts considering the same subject matter.”

1 [1997] 3 SCR 440. See also S Ruel The Law of Public Inquiries in Canada (2010) 13.

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[13] In S v Sparks (Sparks)2, Human J, writing for the full Court had this to say: -
“An inquiry before a Commission is not a proceeding in which there are
interested individual parties who are entitled to a hearing and a verdict on the
evidence. A Commission of Inquiry deals with matters of public interest,
frequently matters which have already been publicly ventilated.”

[14] In this judgment, this Court shall ad seriatim deal with (a) the postponement
application; (b) the issue of jurisdiction; (c) the merits of the review; and (d) the
issue of costs.

The postponement application
[15] As indicated at the dawn of this judgment, the postponement application was not
granted. As a matter of trite principle, a postponement application is not there for
a mere taking. An application for postponement impacts on the principle of finality
of litigation and puts a strain on the smooth administration of justice. It is in the
interest of both the applicant and the respondents to achieve finality in litigation.
This Division is under immense pressure to process opposed motion matters.
When a motion is enrolled and allocated for a hearing, a judicial officer is
allocated to the matter. The judicial officer , in preparation for a hearing of an
application, reads the papers filed by the parties. Given the thinly spread judicial
resources, deserving matters fail to make it to the already congested motion court
rolls of this Division. Thus, if an application is generously and without regard to
the governing principles postponed, this means that a deserving application
festering in the office of the Registrar would have lost an available space. This
affects the business of the Court to smoothly administer justice. It inevitably leads
to undue duplication of functions. Two or three judicial officers may read the same
matter repeatedly. This cannot be encouraged.

[16] In motion proceedings, a party is compelled to make out its case in the founding

[16] In motion proceedings, a party is compelled to make out its case in the founding
affidavit as opposed to the replying affidavit3. It is no answer for a party seeking

2 1980 (3) SA 952 (T).
3 Shepard v Tuckers Land and Development Corporation (Pty) Ltd 1978 (1) SA 173 (W) at 177 and
Swissborough Diamond Mines (Pty) Ltd v Government of the RSA 1999 (2) SA 279 (T) at 338.

8

to make out a case in the replying affidavit to submit that the other party failed to
seek a striking out of the belated case made out in reply. The striking out
procedure is regulated by rule 6(15) of the Uniform Rules. It only happens to a
matter which is scandalous, vexatious or irrelevant. Where a party
unprocedurally makes a case in the replying affidavit, the disadvantaged party is
not compelled to launch a rule 6(15) application since there is nothing
scandalous, vexatious or irrelevant in making a case in a wrong affidavit.4 Thus,
the submission made by Mr Hugo for the applicant, that the respondents ought
to have applied for a striking out is without merit.

[17] It is to the founding affidavit in support of the postponement application that this
Court must look to, to establish whether a postponement application is properly
grounded. The applicant stated the following in her founding affidavit:
“19 It is, therefore, my request to this honourable court to have this matter
postponed to a later date , to allow me to collect funds and follow up on my
unpaid invoices, as well as allowing the Senior Counsel to go through the
papers and settle my Heads of arguments.”

[18] The above averment illuminates only two grounds in support of the
postponement application: namely, the collection of funds and allowing senior
counsel to settle the heads of argument . As a departure point , these are not
proper grounds for a postponement application. Howbeit, as at the hearing date,
Mr Hodes SC had settled the heads of arguments on behalf of the applicant. This
Court fails to understand how the collection of funds relates to the hearing of the
review application. If it relates to financial quandaries, as argued by Mr Hugo,
such a ground has not been properly motivated. Given the applicant’s alleged
financial difficulties, it is perplexing why she insist s on being represented by a
senior counsel, regard being had to her state of impecuniousness. The right to

senior counsel, regard being had to her state of impecuniousness. The right to
legal representation does not mean that a litigant must insist on a Rolls-Royce
when he can only afford a Mazda. Having settled the heads of argument, on the
appointed day for a hearing, Mr Hodes SC failed, for reasons not apparent to this
Court, to appear and defend the settled heads of argument. It is not averred by

4 Beinash v Wixley 1997 (3) SA 721 (SCA).

9

the applicant in the founding affidavit that Mr Hodes SC was briefed to appear or
not. It was only in the replying affidavit and some corresponden ce that it was
mentioned that Mr Hodes SC was incidentally not available to appear on behalf
of the applicant in the week of 4 -8 August 2025. Perplexingly, the applicant
managed to source the services of Mr Hugo and instructed him to only move the
postponement application. The Constitutional Court has already decreed that
counsel must not attend Court only to ask for a postponement5. Counsel must be
prepared to assist the Court if a postponement sought is not granted . I
understand this decree to underscore that it is inappropriate for counsel to accept
a brief only to seek a postponement of a matter. When counsel does that, he or
she departs from an erroneous premise that a postponement is there for the mere
taking. Such is an unacceptable departure. Counsel must accept a full brief
considering the eventualities mentioned by the Constitutional Court.

[19] Mr Hugo, when confronted with the decree of the Constitutional Court , hoisted
the cab rank rule and the voluminous record in this matter, which was impossible
to read owing to his late brief. He submitted that the record is constituted by about
19000 pages. It is doubted that all the 19000 pages are relevant to the impugn
hoisted by the applicant in this application. The applicant, as a dominis litis, is
obliged in terms of rule 53 (3) and (4) to provide each of the parties with the
relevant portions of the record of the proceedings sought to be reviewed and set
aside. The applicant, for reasons that are not apparent anywhere, failed to do so.

[20] The averment of the unavailability of Mr Hodes SC appears nowhere in the
founding affidavit as a ground for a postponement application. It is by now trite
that the unavailability of a preferred counsel is not a ground for a postponement.6
This Court is uncertain as to whether Mr Hodes SC is on brief to appear. On the

This Court is uncertain as to whether Mr Hodes SC is on brief to appear. On the
one hand, an allegation is made that an unnamed senior counsel , presumably
Mr Hodes SC, who was prepared to argue the case demanded a R100 000
upfront payment which the applicant was unable to raise. There is no evidence

5 National Police Services Union and Others v Minister of Safety and Security and Others [2000] ZACC
15; 2000 (4) SA 1110; 2001 (8) BCLR 775 (CC).
6 I.K.B v C.A.B [2023] ZAGPJHC 636; Centirugo AG v Firestone (SA) Ltd 1969 (3) SA 318 (T); 1969 (3)
All SA 330 (T).

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presented before this Court as to whether Mr Hodes SC ultimately accepted the
brief without the upfront payment. All there is, is an allegation that he incidentally
became unavailable. As to why he incidentally became unavailable, this Court is
in the dark . This Court is not satisfied that good and sufficient reasons existed
for the postponement application to be granted. As a parting shot, the applicant
is a dominis litis who is allegedly severely prejudiced by the findings and
recommendations of the SCC. With this postponement application, the applicant
is effectively stating that she wishes to continue havin g a proverbial sword
hanging over her head for more days to come. This conduct is inconsistent with
that of a party seeking to remove an albatross from around their neck. It was for
all the above reasons that this Court refused to exercise its discretion in favour
of postponing the ripe review application.

The issue of jurisdiction
[21] It is to this issue that I now turn my attention. The factual basis of the objection
to the exercise of jurisdictional powers by this Court is simply that the chairperson
of the SCC is a judicial officer of the Superior Court. As at 2022, when the review
application was launched, the chairperson of the SCC was , by appointment, a
Deputy Chief Justice (DCJ) of the Republic of South Africa attached to the
Constitutional Court of South Africa. The respondents contend that section 47(1)
of the Superior Courts Ac t (“the SC Act)7 prevents the institution of the present
application against the chairperson of the SCC in the absence of the consent of
the head of the Constitutional Court.

[22] The contention is raised as a lack of jurisdiction. The allegation is that the consent
of the head of Court contemplated in section 47(1) is a jurisdictional requirement.
This Court does not believe that the issue is truly a jurisdictional point.
Jurisdiction is about the power of a Court to hear a matter. Generally, jurisdiction

Jurisdiction is about the power of a Court to hear a matter. Generally, jurisdiction
is established in the pleadings .8 The pleaded case of the applicant is that of a
legality review. Based on the pleadings, the High Court retains jurisdiction to hear

7 Act 10 of 2013.
8 Baloyi v Public Protector and Others [2020] ZACC 27 ; 2022 (3) SA 321 (CC) ; 2021 (2) BCLR 101
(CC).

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the application. Jurisdiction of the High Court arises from section 169(1) of the
Constitution.

The reach and purport of section 47(1) of the SC Act
[23] Effectively, this section prevents the institution of civil proceedings against a
judge in the absence of the consent of the head of Court. In my considered view,
it affords South African judges a limited immunity from being sued by litigants. All
the section implies, in my view, is that civil proceedings instituted against a judge
without consent are procedurally defective in a sense. However, to my mind, the
veritable question is whether th e present application is instituted against a
“judge” or not. Undoubtedly, the chairperson of the SCC in the name of the
Honourable Mr Justice R M M Zondo is a judicial officer or a judge. However, the
present review application is not launched against him in his capacity as a judicial
officer. When regard is had to the preamble of the Commissions Act (CA) ,9 a
commission is appointed for the purposes of investigating matters of public
concern. On the other hand, a judge or judicial officer as contemplated in section
165(2) of the Constitution is appointed to apply the law impartially and without
fear, favour or prejudice.

[24] When the chairperson of the SCC made the impugned findings and
recommendations, he did so as part of investigating matters of public concern
and could not have been a judge as contemplated in section 165(1) of the
Constitution. Thus, in my fervently held view, the present civil proceedings are
not instituted against a judge, but a chairperson of a commission as established
by the CA to carry out the functions contemplated in the CA. To buttress this
point, the Court in Freedom Under Law v Motata (FUL),10 with sufficient sagacity
expressed itself in the following felicitous terms. The learned Mlambo JP, as he
then was, said:
“[26] … The core function of Judges is the adjudication of disputes involving

then was, said:
“[26] … The core function of Judges is the adjudication of disputes involving
competing interests daily. The judgments they hand down as well as the
statements they make in their judgments invariably displease some litigants
and sometimes their legal representatives. It is integral to the adjudication

9 Act 8 of 1947.
10 [2021] ZAGPPHC 14.

12

function of Judges that they should be free from any fear of repercussions for
doing their work. It is necessary therefore that Judges be protected from the
ever-present threat of legal proceedings directed at them arising from the
execution of their official responsibilities. This is necessary to ensure that they
adjudicate disputes unhindered and that they do so without fear, favour or
prejudice.” (Emphasis added.)

[25] The learned Mlambo JP further reached the following apt conclusion , which, in
my considered view, underscores the reach and purport of section 47(1). He said:
“[34] The objective of the review proceedings is therefore aimed at asserting
the proper standard by which Judges’ misconduct should be dealt with by the
JSC. Issues of judicial integrity and accountability will of necessity be ventilated
in the review proceedings. It is common cause that the Judicial Conduct
Tribunal, established to investigate allegations of gross misconduct against the
respondent, had recommended that the respondent be found guilty of gross
misconduct which carried with it the prospect o f impeachment, but the JSC
rejected that recommendation opting instead to return a verdict of misconduct
simpliciter. The review is aimed [at] testing the appropriateness of that finding.

[35] This is, in my view, a clear case where consent is warranted .
“(Emphasis added.)

[26] What is perspicuous in the FUL matter is that consent is required in an instance
where a judge had performed the functions of a judge. The corollary of that must
be that , where a judge functions in a different capacity , consent will not be
required simply by virtue of their judicial status. There is no doubt that the
purpose of section 47(1) is to afford some limited immunity and protection to
judges when they perform their official functions. This , to my mind , is
underpinned by the express exclusion of the application of the section to an

underpinned by the express exclusion of the application of the section to an
application brought in terms of the Domestic Violence Act. Nevertheless, the
point made herein was somewhat confirmed by the U nited States Courts in
Mireles v Waco (Waco).11 In the United States , unlike in South Africa, judges
enjoy full immunity against lawsuits12.

11 502 US 9 (1991).
12 See Randall v Brigham 74 U.S. 523, 537 (1869) and Bradley v Fisher 80 U.S. 335, 347 (1872).

13


[27] Waco, a public defender, sued Judge Mireles out of an episode in which the judge
had Waco frog-marched backwards to his courtroom. Waco had earned the ire
of the judge for failing to appear in his courtroom as scheduled. The irate Mireles
J ordered the police officers on duty to forcibly bring Waco back to the courtroom.
The Federal District Court dismissed the action against Mireles J on the grounds
that the judge enjoyed complete immunity from civil claims. The Court of Appeals
disagreed and held that Mireles J was not acting in his judicial capacity when he
ordered the police and had lost immunity which came with his office. At the United
States Supreme Court, the Court differed with the Court of Appeals only on the
basis that it classified the actions of Mireles J as non-judicial13.

[28] Grippingly, at the United States Supreme Court , the Honourable Mr Justice
Stevens dissented on the basis that one of the acts had no relation to a function
normally performed by a judge. A judge enjoys absolute protection in respect of
all conduct which is judicial in the sense that it accords with the normal judicial
function.14 If the approach followed in Mireles is adopted, which I suggest it
should be, where a judge performs no n-judicial functions, the limited immunity
contemplated in section 47(1) of the SC Act finds no application. The chairperson
was not cited in his capacity as a judge but as the chairperson of the commission.
The chairperson in the commission performed a public or statutory function.
Section 172 of the Constitution endows a Court with an obligation to declare any
conduct that is inconsistent with the Constitution invalid to the ex tent of the
inconsistency. The chairperson functioning as a statutory functiona ry cannot be
insulated by section 47(1) for the purposes of enforcing s ection 172 of the
Constitution. If it is found by a Court of competent jurisdiction that the chairperson

Constitution. If it is found by a Court of competent jurisdiction that the chairperson
of the SCC has transgressed, it would not have been a transgression within the
parameters of his judicial function. The protection in the section is a procedural
mechanism against meritless lawsuits against judges and not statutory
functionaries. The Court in FUL confirmed that section 47(1) covers retired
judges as well. If wearing a badge of a judge affords the limited immunity , one

13 See 1799-1800 of McCreath & Koen.
14 McCreath & Koen “Defending the absurd: the iconoclast’s guide to section 47(1) of the Superior
Courts Act 10 of 2023” (2014) 17(5) P.E.R 1789.

14

imagines a situation where a retired judge is contracted as a private arbitrator,
as it occasionally happens, and the arbitration award of the retired judge is
impugned on review, as it usually happens . Does it mean that an applicant for
review of the private arbitration award must first obtain consent from the head of
the Court where the retired judge last served , before instituting a review
application? To my mind, such will be stretching the limited procedural immunity
contemplated in the section beyond what the section seeks to achieve. This
Court is doubtful that such practice of obtaining consent to cite private arbitrators
exists. I f it does, the heads of Court s are certainly inundated with consent
applications from the private arbitration sector. Ordinarily, judges who acted as
arbitrators do not even oppose or get embroiled in review litigations.15

[29] In summary, this Court concludes that the chairperson of the SCC is not
contemplated in section 47(1), as such consent is not and was not required to
institute the present application. The jurisdiction of this Court is not in any manner
or shape ousted by the lack of consent from the head of the Constitutional Court.

Merits of the review application.
[30] Turning my attention to the merits of the review application. It is apparent from
the grounds punted for that th e present is a legality as opposed to a Promotion
of Administrative Justice Act (PAJA) review. This Court must, without hesitation,
point out that regard being had to the barrage of criticisms levelled against the
SCC’s findings, the applicant is effectively seeking an appeal disguised as a
review. A review is different from an appeal. In a review, correctness plays no
role, whereas in an appeal, correctness plays a major role.

[31] It may be helpful to first recognise the role of the SCC in terms of the CA. Its role
is investigative in nature, and it investigates matters of public concern. The way

is investigative in nature, and it investigates matters of public concern. The way
and the powers of the commission in investigating matters of public concern are
governed by the provisions of the CA, in particular sections 2, 3, 4, 5 and 6 of the
CA. It has not been contended in the founding affidavit by the applicant that the

15 See for instance Corruption Watch and Another v Arms Deal Commission and Others [2019]
ZAGPPHC 351; 2020 (2) SA 165 (GP); [2019] 4 All SA 53 (GP), where the Honourable retired justices
were cited without any consent of the head of Court.

15

SCC straddled outside the parameters of the CA when it conducted the
investigations.

[32] Regarding the applicable standard of review, it is of significance to state that
generally, at the judicial review stage, only evidence relied upon in the decision
under review must be considered 16. Differently put; in assessing the impugned
findings and recommendations, reliance can only be placed on the evidence
tendered at the SCC and nothing more. Such must be the case because the
purpose of a judicial review is not to determine whether the decision of the SCC
was correct in absolute terms but rather to determine that it was correct based
on the record before it17.

[33] The CA does not afford any aggrieved party a right to appeal the findings and
recommendations of the SCC. Thus, the only available remedy to an aggrieved
party is to seek a review . Since the SCC performed investigative functions , the
PAJA review is unavailable as a judicial review pathway 18. With regard to a
standard of review, it must follow that the applicable standard of review is that of
reasonableness.19 In Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs (Bato)20, the Court confirmed that the reasonableness test implies that in
order for the decision to be reviewed, it must be demonstrated to be one that is
so unreasonable that a reasonable decision maker would not make. Applying the
Bato test, the findings and the recommendations of the SCC are firstly consistent
with the tendered evidence and secondly, they fall within the bands of
reasonableness21.

[34] To the extent that the applicant alleges that the findings are irrational. The
applicant does not alle ge any procedural irrationality. The Constitutional Court
clarified the principle of legality in the following terms:

16 Smith v Canada 2001 FCA 86.
17 Chopra v Canada (Treasury Board) 1999 CanLII 8044 (FC).
18 See AGSA v MEC for Economic Opportunities, Western Cape and Another 2022 (5) SA 44 (SCA).

18 See AGSA v MEC for Economic Opportunities, Western Cape and Another 2022 (5) SA 44 (SCA).
19 Canadian Federation of Students v Natural Science and Engineering Research Council of Canada
2008 FC 493 (CanLII).
20 [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC).
21 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; 2008 (2) SA 24
(CC); 2008 (2) BCLR 158 (CC).

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[40] What we glean from this is that the exercise of public power which is at
variance with principle of legality is inconsistent with the Constitution itself. In
short, it is invalid… Relating all this to the matter before us, the award of the
DoD agreement was exercise of public power. The principle of legality may thus
be a vehicle for its review. The question is: did the award conform to legal
prescripts? If it did, that is the end of the matter. If it did not, it may be reviewed
and possibly set aside under legality review.22 (Emphasis added.)

In Minister of Defence and Military Veterans v Motau23 it was said:
The principle of legality requires that every exercise of public power, including
every executive act, be rational. For the exercise of public power to meet this
standard it must be rationally related to the purpose for which the power was
given.” (Emphasis added.)

In Democratic Alliance v President of the Republic of South Africa 24, Yacoob
ADCJ, as he then was, stated the following about rationality:
“[27] The Minister and Mr Simelane accept that the ‘executive’ is ‘constrained
by the principle that [it] may exercise no power and perform no function that
conferred… by law ’ and that the power must not be misconstrued. It is also
accepted that the decision must be rationally related to the purpose for which
the power was conferred. Otherwise, the exercise of the power could be
arbitrary and at odds with the Constitution. I agree.” (Footnotes omitted.)

It has been confirmed that rationality and reasonableness, although they overlap
significantly, are conceptually different 25. In Albutt v Center for the Study of
Violence and Reconciliation and others26, the following was said:
“The Executive has a wide discretion in selecting the means to achieve its
constitutionally permissible objectives. Courts may not interfere with the means
selected simply because they do not like them, or because there are other more

selected simply because they do not like them, or because there are other more
appropriate means that could have been selected. But, where the decision is

22 State Information Technology Agency SOC ltd v Gijima Holding (Pty) Ltd [2017] ZACC 40; 2018 (2)
SA 23 (CC); 2018 (2) BCLR 240 (CC).
23[2014] ZACC 18; 2014 (5) SA 69 (CC); 2014 (8) BCLR 930 (CC).
24 [2012] ZACC 24; 2013 (1) SA 248 (CC); 2012 (12) BCLR 1297 (CC).
25 See Pharmaceutical Manufacturers Association of SA In Re: Ex Parte Application of the President of
the RSA 2000 (3) BCLR 241 (CC)
26[2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC) at para 51.

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challenged on the grounds of rationality, courts are obliged to examine the
means selected to determine whether they are rationally related to the objective
sought to be achieved. What must be stressed is that the purpose of the enquiry
is to determine not whether there are other means that could have been used,
but whether the means selected are rationally related to the objective sou ght
to be achieved. And if, objectively speaking they are not, they fall short of the
standard demanded by the Constitution.”

[35] A submission was made in the heads submitted by Mr Hodes SC that SCC and
its chairperson failed to execute the investigation within its terms of reference in
that it overlooked critical evidence and demonstrated bias. Having scoured
through the founding affidavit of the applicant, this Court was unable to identify
any allegation of an oversight of critical evidence or demonstration of bias. An
applicant for review is not permitted to make a case only in argument when such
a case is not foreshadowed in the f ounding papers. On proper consideration of
the applicant’s founding affidavit, it is replete with statements like “my version”
and it is “not true”. Contending that a version is true and the other is not true does
not amount to an oversight of evidence. Put to its lowest ebb , it may mean that
the alleged truthful evidence is rejected as opposed to being overloo ked. The
conclusions reached in the Corruption Watch27 case, heavily relied on by the
applicant, are not apposite in the present application. In Corruption Watch, a
finding was made that the commission failed to conduct the task assigned to it
through its terms of reference. In the present application, this Court is unable to
reach the same conclusion. In fact, the Court in Corruption Watch cautioned thus:
“[70] We accept that Courts must be ca utious before exercising a power of
review over the proceedings of a commission. To exercise a review power in

review over the proceedings of a commission. To exercise a review power in
an overzealous fashion would be to subvert the flexible nature of a
commission’s choice of procedure and constrain many decisions that a
commission must make along the way to its ultimate findings. However, where
the uncontested evidence reveals so manifest a set of errors of law, a clear
failure to test evidence of key witnesses, a refusal to take account of
documentary evidence which contained the most serious allegations which

27 Corruption Watch and Another v Arms Procurement Commission and others [2019] ZAGPPHC 351;
2020 (2) SA 165 (GP); 2019 (10) BCLR 1218 (GP).

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were relevant to its inquiry, the principle of legality dictates only one conclusion,
that the findings of such a commission must be set aside.”

[36] With regard to the ripeness argument, on the strength of the decision of Peters
v Davison (Peters)28 and Fay, Richwhite and Co Ltd v Davidson (Davidson)29 this
Court takes a view that to the extent that the applicant alleged some irrationality
in the findings, she was entitled to impugn the findings, even in the circumstances
where the recommendations do not adversely prejudice any of her rights. On
application of the legality principle, a party is entitled to a rational decision.
However, the rationality test , as demonstrated in the Albutt case, is a low
threshold test. What is to be investigated by a Court of review is the means
employed as opposed to the correctness of the decision. The applicant failed to
demonstrate that the findings or recommendations suffer from any form of
irrationality. The consequence of that failure is that her legality review falls to be
dismissed.

The issue of costs
[37] The respondents employed the services of three counsel. The respondents
sought an order of costs to include the costs of employing two counsel. It may
well be so that the present application is an offshoot of the much-popularised
SCC inquiry, but the present is confined to a portion of the humongous report. It
remains an ordinary run -of-the-mill review application. The employment of two
counsel was not warranted. However, this Court takes the view that the
employment of a senior counsel was warranted. Ms Ho fmeyer SC was steeped
in the matter , and for her, it was a reinvention of the wheel , having been the
evidence leader at the SCC.

[38] Because of all the above reasons, I make the following order:
Order
1. The application for postponement is dismissed.
2. The application for review is dismissed.

28 [1999] 3 NZLR 744.
29 [1995] 1 NZLR 517 (CA) at 524.

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3. The applicant must pay the costs attendant to the postponement
application as well as the review application on a scale of party and party
to be settled or taxed at scale C. The costs include the costs of
employing one senior counsel.


____________________________
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA



APPEARANCES:
For the Applicant: Hugo (postponement only) Heads, L Hodes SC
Instructed by: L Mbanjwa Inc, Pretoria.
For the Respondents: K Hofmeyer SC, M Mbikiwa and A Molver
Instructed by: Molefe Dlepu Inc, South Kesington
Date of Hearing 5 August 2025
Date of judgment: 14 August 2025