IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
CASE NO: 13301/2020
In the matter between:
DUMISANI JOB SITHOLE Applicant
and
THE PUBLIC SERVICE COMMISSION First Respondent
SPEAKER OF THE NATIONAL ASSEMBLY Second Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL OF Third Respondent
PROVINCES
SECRETARY OF PARLIAMENT Fourth Respondent
Coram: HOLDERNESS J
Heard: 26 November 2026
Further submissions: 30 January 2026
Delivered: 13 May 2026
________________________________________________________________
JUDGMENT
HOLDERNESS J
[1] On 14 September 2018 a tragic event came to pass in the parliamentary
building. Mr. Lennox Mzuheli Garane ( “Mr. Garane”) committed suicide in his
office, where he served as Section Manager in the International Relations and
Protocols Division. In a note he described his actions as a ‘protest suicide’.
[2] This Uniform rule 53 review application by the applicant, Mr. Dumisani
Job Sithole (“Mr. Sithole or the applicant”) who is in the employ of Parliament,
concerns the report of the first respondent, the Public Service Commission (the
“PSC or the Commission ”), emanating from an investigation into personnel
practices pertaining to the late Mr. Garane (the “report”).
[3] The PSC is established in terms of section 196 of the Constitution.
According to Mr. Shukrat Makinde,1 who deposed to the answering affidavit on
behalf of the PSC, its functions include the obligation to promote the basic
values of an effective public administration by, inter alia , investigating and
1 The Director: Litigation and Legal Services at the PSC.
monitoring personnel practices in the public service and public administration
of the State.
[4] In terms of section 196(2) of the Constitution, the PSC is enjoined to be
‘independent and must be impartial, and must exercise its powers and perform
its functions without fear, favour or prejudice in the interest of the maintenance
of effective and efficient public administration and a high standard of
professional ethics in the public service.’
[5] The report was commissioned by the second respondent, the then Speaker
of Parliament, Ms. Baleke Mbethe (Ms. Mbethe) and the third respondent, the
then Chairperson of the National Council of Provinces, Ms. Thandi Modise
(Ms. Modise), in their capacities as Presiding Officers and Executive Authority
of Parliament (“presiding officers”).
Factual background
[6] In October 2013 , Mr. Garane was appointed as Section Manager:
Multilateral Relations (SMMR) for 5 years, until 30 September 2018.
[7] In January 2017, Mr. Garane became Division Manager: International
Relations and Protocol.
[8] After his suicide in September 2018, the presiding officers requested the
PSC to investigate the circumstances that led to Mr. Garane’s suicide.
[9] The decision to investigate was prompted by the contents of Mr. Garane’s
suicide note. He titled the document “ protest suicide”. He listed several
grievances concerning the conduct of Mr . Sithole and others in the workplace.
He accused Mr . Sithole of being a bully, and he explained in the note that his
attempts to address his removal from the position for which he was contracted,
and placed in a different position, were not addressed through the processes of
Parliament.
[10] Mr. Garane’s main grievance was that he was improperly moved from the
position of SMMR – a position for which he was contracted – and unilaterally
reallocated to SM IR, without prior and proper consultation with him. Mr
Garane’s suicide note lamented that he had attempted to address this conduct
through the grievance procedure provided for by Parliament, but these attempts
were futile because they were obstructed by officials within Parliament.
[11] The PSC commenced its investigation by sending out an ‘info alert’ to all
parliamentary staff on 8 November 2018. The alert requested Parliament’s staff
to provide all documents relevant to the terms of reference for the investigation.
The Secretary of Parliament provided the PSC with the documentation obtained
from staff, together with Mr. Garane’s laptop on 13 November 2018.
[12] Between 17 November 2018 and 14 December 2018, the PSC conducted
a total of 3 3 interviews with serving and former employees of Parliament. It
also obtained a total of 16 affidavits from parliamentary employees, relevant to
the terms of reference under investigation, which included an affidavit from Mr.
Sithole.
[13] On 12 December 2018, the PSC met with the Garane family.
The provisional report
[14] The PSC analysed the information it had obtained – the documents
provided to it; the interviews with parliamentary staff and Mr. Garane’s family,
as well as the information on Mr Garane’s laptop. It prepared a provisional
report which was sent to the Secretary of Parliament on 4 March 2019 (the
“provisional report”).
[15] The provisional report provides a comprehensive assessment of the
circumstances involving Mr. Garane across five specific areas of inquiry.
[16] Regarding the first term of reference, the Commission confirmed that Mr.
Garane was indeed removed from his role as SMMR and transferred to a
different position within the International Relations and Policy Division. While
documentation showed he signed a performance agreement for the new role, the
evidence demonstrated that he did so under significant objection.
[17] The second term of reference addressed the justification and legality of
the removal. The Commission determined that the process was procedurally
unfair and lacked necessary consultation between Mr. Sithole and Mr. Garane.
[18] The investigation rejected the management’s assertion that the move was
merely a cosmetic change, finding instead that it represented a substantial
alteration to the organi sational structure. Furthermore, the report noted a failure
to comply with the established implementation procedures for the management
of the parliamentary service.
[19] In the third area of inquiry, the PSC evaluated the processing of Mr .
Garane’s grievances. It concluded that the parliamentary administration lacked a
suitable internal grievance procedure for managers, which fundamentally
compromised transparency and fairness. The report highlighted a conflict in the
handling of Mr. Garane’s contract renewal, noting that because Mr . Sithole was
aware of the grievances against him, the matter of the contract should have been
referred to the Secretary of Parliament to ensure impartiality.
[20] The fourth term of reference focused on the tragic events of 14 September
2018, and related security matters. The findings indicated that both the
Organisational Welfare Unit and senior leadership failed to intervene effectively
despite having prior knowledge of Mr. Garane’s distress and suicide threats.
[21] On the matter of security, the report documented that Mr . Garane entered
the premises without following standard X -ray screening protocols. It pointed
out that these specific security vulnerabilities had been identified by the South
African Police Service as early as 2004, yet Parliament and the Department of
Public Works had failed to resolve them.
[22] Finally, the fifth term of reference concerned the resolution of the matter
for both the institution and the bereaved family. The Commission sought
specific input and proposed actions from the parliamentary administration
intended to provide the Garane family with a sense of closure and to address the
administrative failures identified throughout the investigation.
[23] When the PSC provided Parliament with its provisional report, it did so
with a note indicating that ‘the report will be finalised by the PSC upon
consideration of the inputs on the provisional report ’. The PSC specifically
requested the Secretary of Parliament to provide Mr. Sithole and Adv. Phindela
with the provisional report for their comment.
[24] The PSC found that Mr. Garane was indeed removed from his position of
SMMR and that Mr. Sithole failed to properly deal with Mr. Garane’s request
for the renewal of his contract, did not uniformly apply the process of dealing
with requests for contract renewals , and failed to provide reasons to Mr. Garane
for the non-renewal of his contract.
[25] It further found that Mr. Sithole arbitrarily, unlawfully , and irregularly
transferred Mr. Garane to a position which he had always indicated that he had
neither interest in nor capacity to handle. As Mr. Sithole was aware of Mr.
Garane’s grievances against him, he should have formally escalated the matter
to the Secretary of Parliament.
[26] In April 2019, the PSC received comments from Mr . Sithole, Adv
Phindela, and Ms . Twaya. The PSC considered the se comments before
finalising its report.
The final report
[27] In the final report, dated 12 April 2019, the PSC confirmed the findings it
made in the provisional report and made several recommendations to
Parliament, which addressed a wide range of institutional, psychological, and
security reforms designed to prevent the recurrence of the Garane kind of
tragedy.
[28] A significant portion of the report focused on the structural management
of the parliamentary workforce. The Commission recommended that Parliament
take a formal policy decision regarding the use of fixed -term contracts for
managers and professionals.
[29] To support this, it suggested that Parliament either develop robust human
resources policies or consider enacting legislation similar to the Public Service
Act 103 of 1994 . These regulations would specifically govern the temporary
assignment of duties, the transfer of employees between posts, the management
of acting appointments in vacant positions, and the protocols for renewing or
terminating contracts, all while ensuring strict adherence to fair labour practices.
[30] A critical administrative priority identified was the formalisation of a
grievance management system that explicitly includes managers and defines the
role of employee relations practitioners, coupled with the requirement to finalise
the employee wellness policy and ensure that all staff members are properly
trained to handle crisis emergencies, including potential suicides.
[31] Furthermore, the PSC called for a rigorous assessment of the fitness and
proficiency of specific senior officials, including Ms. Tyawa, Adv. Phindela, and
Mr. Sithole. This evaluation was, according to the PSC, intended to identify
gaps in leadership and people management skills, with the expectation that any
deficiencies be addressed through developmental programs, coaching,
mentoring, or consequence management and corrective measures where
appropriate.
[32] The PSC recommended that there should be an assessment into the fitness
and proficiency of Mr. Sithole 2 to hold leadership and management positions . It
2 And Adv Phindela and Ms. Tyawa.
also recommended that gaps identified by that assessment exercise ‘should be
addressed through developmental programmes that may entail coaching,
mentoring and formal training programmes… and other corrective measures.’
[33] The report recommended a special inquiry into the International Relations
and Policy Division , focusing on internal organisational culture. It noted that
toxic relationships and deep divisions in this unit predated current leadership
and required the intervention of a change management expert to foster a
professional and collegial environment. To provide broader institutional
stability, the Commission urged Parliament to set a firm deadline for the
finalisation of its ongoing institutional restructuring process.
[34] Security reforms were addressed through a recommendation to establish a
joint planning committee under the National Key Point Act 102 of 1980 . This
body would facilitate regular engagement among stakeholders to address
technical challenges with equipment, optimi se the layout of access points, and
leverage technology more effectively to secure the precinct. Additionally, the
South African Police Service was advised to review and potentially restructure
the Parliament Static Unit within the Protection and Security Services in the
Western Cape.
[35] The final set of recommendations focused on the Garane family and the
concept of restorative closure. The Commission proposed that Parliament
implement specific measures suggested by the family and administrators to
resolve the matter , including assessing the family’s need for continued
counselling for at least a year and facilitating a formal visit to the family by
senior officials, including Mr. Sithole, Adv. Phindela, and Mr. Mokonyana.
[36] On a practical level, the Commission suggested that Parliament consider
relocating the division to a new physical space to ensure that employees are not
daily confronted by the site of the tragedy.
[37] Finally, the presiding officers were directed to attend to various
observations in the provisional report that correlate with the specific
professional challenges Mr. Garane faced during his tenure.
[38] The respondents emphasised that the recommendations contained in the
final report were merely recommendations and were not binding on Parliament.
Whatever decision Parliament took arising from the recommendations was its
own decision and not that of the PSC.
[39] The respondents contend that Mr. Sithole’s true grievance in this
application concerns Parliament’s actions against him arising from the non –
binding recommendations in the report.
[40] In November 2019, Parliament initiated disciplinary proceedings against
Mr. Sithole. Should the charges and contents in paras [41] -[43] not be
listed/discussed as part of this para, instead?
[41] The first charge alleges that he acted irregularly and unlawfully by
merging the Multilateral Relations and Bilateral Sections, thereby changing the
organisational structure of the International Relations Protocol Divisions
without proper authorisation.
[42] The second charge focuses on the specific treatment of Mr . Garane,
alleging serious misconduct in the decision to move him from his established
role as Section Manager of Multilateral Relations to the position of Section
Manager of International Relations Policy Analysis.
[43] The third charge involves a failure in leadership and administrative duty,
asserting that Mr. Sithole did not appropriately deal with Mr. Garane’s formal
request regarding the renewal of his fixed -term employment contract in August
2018.
[44] On 8 July 2020 , Mr. Sithole was found guilty of the charges and was
given a final written warning, which expired in July 2021.
[45] On 18 September 2020 , Mr. Sithole instituted these proceedings. Two
days later , he referred an unfair labour dispute to the Commission for
Conciliation, Mediation and Arbitration (the “ CCMA”). The dispute did not
proceed as Mr. Sithole was unsuccessful in his application for condonation of
the late referral of the dispute. His application to rescind the ruling refusing
condonation was also refused.
[46] Mr. Sithole contends that a t the heart of th is matter is his contention that
the report adversely affects, and is prejudicial to , his personal and professional
reputation, and confirmed earlier accusations published in the media, on social
media, and at the funeral of Mr. Garane.
[47] He submits that the report confirmed the public perception that he drove
Mr. Garane to his unfortunate and untimely death.
The amended relief sought
[48] In terms of the further amended notice of motion 3, Mr. Sithole seeks the
following relief:
48.1 That the first respondent’s Report and/or Findings issued and published
on 12 April 2018 which was commissioned by and released to the
Second and Third Respondents (“the impugned Report and/or
Findings”), are declared invalid, unlawful, unconstitutional, and / or null
and void.
48.2 Alternatively, that the impugned Report and/or Findings are reviewed
and set aside.
48.3 Ordering that the First, Second and Third Respondents, and anyone else
who opposes this application, shall pay the costs of this application,
jointly and severally.
Litigation history
[49] This matter has an unfortunate and protracted history.
[50] On 11 November 2020, an order was granted by agreement directing the
respondents to file the rule 53 record by 24 November 2020.
[51] The respondents filed a Uniform rule 30 (“rule 30”) notice on 15 April
2021, and a rule 30 application on 3 May 2021.
[52] By agreement, the rule 30 application, which was opposed by Mr. Sithole,
was set down for hearing on 16 September 2021 . Judgment was delivered,
3 Mr. Sithole brought a further application to amend the notice of motion however they expressly abandoned the
application for leave to amend at the hearing of this application.
dismissing the rule 30 application, on 10 March 2021, approximately 18 months
after the matter was heard.
[53] The respondents delivered the rule 53 record on 9 May 2023.
[54] On 20 October 2023 , Mr. Sithole filed an amended notice of motion and
supplementary affidavit , together with a condonation application for the late
filing thereof. The respondents filed their answering affidavits in November
2023.
[55] Mr. Sithole’s replying affidavit was only filed seven months later, on 14
June 2024.
[56] When the review application was heard on 26 November 2024, I
requested Adv. Khoza, who appeared on behalf of Mr. Sithole together with
Adv. Ngqata, to cause an affidavit to be delivered explaining the late filing of
Mr. Sithole’s replying affidavit and heads of argument.
[57] An affidavit by Mr. Sithole’s attorney, Ms. Zunurah Williams of Mohau
Romeo Tsusi Law Inc t/a MRT Law Inc (“Ms. Williams”) was delivered on 18
December 2025.
[58] Mr. Sithole explained that the late filing, by approximately six months of
the replying affidavit , arose from the exhaustion of Mr. Sithole ’s LegalWise
cover and the need for him, when settlement efforts failed, to instruct new
attorneys.
[59] The applicant brought an application for c ondonation in June 2024.
However, this application was not part of the record placed before the court at
the hearing in November 2025 , due to ‘persistent administrative difficulties
experienced with the court file throughout 2024 and 2025’.
[60] According to Ms. Williams, the late filing of the heads of argument arose
from the timing of the settlement negotiations, and the finalisation of the
amendment application.
[61] The standard principle to apply in any condonation application is the
‘interests of justice’, a ‘flexible concept without an exhaustive definition’ .4On
this score, the Supreme Court of Appeal (the “SCA”) recently reminded of the
following exposition by the Constitutional Court:
“This court has held that the standard for considering an application for condonation is the
interests of justice. Whether it is in the interests of justice to grant condonation depends on
the facts and circumstances of each case. Factors that are relevant to this inquiry include but
are not limited to the nature of the relief sought, the extent and cause of the delay, the effect
of the delay on the administration of justice and other litigants, the reasonableness of the
explanation for the delay, the importance of the issue to be raised in the appeal and the
prospects of success.”5
[62] It is well established that condonation is not merely for the asking, that an
application for condonation must be fully motivated ,6 and that t he court, in
deciding whether to grant condonation has a discretion which must be exercised
judicially.7
4 Mokoele v S (776/2018) [2026] ZASCA 57 (22 April 2026) para 21.
5 Ibid. See also Grootboom v National Prosecuting Authority and Another [2013] ZACC 37; 2014 (2) SA 68
(CC) para 22. Dictum applied in Ekurhuleni City v Rohlandt Holdings CC and Others [2024] ZACC 10; 2025
(1) SA 1 (CC) para 25.
6 Uitenhage Transitional Local Council v South African Revenue Service [2003] ZASCA 76 ; 2004 (1) SA
292 (SCA) para 6. Dictum applied in Mulaudzi v Old Mutual Life Assurance Co (South Africa) and Others
[2017] ZASCA 88; 2017 (6) SA 90 (SCA) para 25...
[2017] ZASCA 88; 2017 (6) SA 90 (SCA) para 25...
7 Mosselbaai Boeredienste (Pty) Ltd v OKB Motors CC 2023 JDR 2033 (SCA); ZASCA [2023] 91 para 11.
Mokoela fn 4 para 21.
[63] I am satisfied that Mr. Sithole has provided an acceptable explanation for
the late filing of the replying affidavit and heads of argument , and that no
incurable prejudice to the respondents has been occasioned thereby.
[64] All of the i ssues raised by the parties have been fully ventilated at the
hearing and in supplementary submissions filed . In the circumstances , the
condonation application is granted in respect of both the replying affidavit and
Mr. Sithole’s heads of argument.
The grounds upon which the decisions are challenged
[65] Returning now to the issues at hand.
[66] The PSC was tasked with examining whether applicable legislation,
organisational policies and guidelines were properly applied or complied with in
relation to Mr Garane’s transfer to a different internal division , the grievances
he lodged concerning the transfer, and the non-renewal of his five-year contract.
[67] Mr. Sithole primarily challenges the lawfulness of two jurisdictional
decisions, namely the presiding officers’ decision to refer the internal
parliamentary employment matter to the PSC (the “referral decision”) and the
PSC decision to accept and undertake the investigation (the “PSC decision ”)
(collectively “the impugned decisions”).
[68] The review of the referral decision is sought under the prayer for further
and/or alternative relief.
[69] Mr. Sithole’s case is that neither the presiding officers nor the PSC was
authorised, in terms of the relevant legislation or the Constitution 8 to take the
impugned decisions. He accordingly seeks an order declaring such decisions to
be ‘unlawful and unconstitutional and reviewing and setting them aside; and
declaring the report unlawful and unconstitutional, and reviewing and setting it
aside on the grounds of irrationality, unreasonableness and unlawfulness, under
the principle of legality.’
The applicant’s principal submissions
[70] The crux of Mr. Sithole’s argument centres on the constitutional limits of
public power and the strict demarcation of authority between different branches
of government, specifically the executive and the legislature.
[71] The review was initially brought in terms of the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”) (as set out in the founding
affidavit). However, in the heads of argument the applicant asserts that the
review is brought under the principle of legality (and no longer under PAJA).
[72] The applicant contends that the principle of legality applies to all
exercises of public power, including investigative and recommendatory conduct,
and that even non -binding reports are reviewable where they are produced
pursuant to ultra vires , irrational, or other wise unconstitutional exercises of
public power.
8 The Constitution of the Republic of South Africa, 1996.
[73] Mr. Sithole asserts that the P SC lacked the necessary jurisdiction to
investigate the affairs of parliamentary employees because its mandate is strictly
confined to the public service as defined by section 196 (2) of the
Constitution9and its enabling legislation , namely the Public Service
Commission Act 46 of 1997, (the “PSC Act”). Since Parliament and its staff are
expressly excluded from the Public Service Act 103 of 1994, they do not fall
within the functional or legal reach of the PSC, so the applicant’s argument
went.
[74] The applicant e mphasised the well -established principle that all public
power must be sourced in law , and that the PSC cannot bypass its own
governing legislation , as this would violate the established principle of
subsidiarity.10
[75] Mr. Sithole’s argument is that the jurisdictional defences advanced by the
respondents, namely that Parliament forms part of the broader ‘public
administration’ and that section 196(4)(f) of the Constitution empowers the PSC
to investigate personnel and public administrative practices falling within that
category, fails to identify any provision of the PSC Act, o r any other
empowering statute, that codifies this constitutional assertion.
[76] Mr. Sithole further takes issues with the alleged failure by the respondents
to point to any authority stating that Parliament forms part of the public
administration for the purposes of section 196(4)(f).
9 Section 196(2) provides :’The Commission is independent and must be impartial, and must exercise its
powers and perform its functions without fear, favour or prejudice in the interest of the maintenance of
effective and efficient public administration and a high standard of professional ethics in the public
service. The Commission must be regulated by national legislation.’
10 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council
and Others 1999 (1) SA 374 (CC) para 56; Pharmaceutical Manufacturers Association of South Africa
and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC).
President of the Republic of South Africa and Others v South African Rugby Football Union and Others
2000 (1) SA 1 (CC).
[77] Mr. Sithole further relies on the Constitutional Court judgment in South
African Municipal Workers ’ Union v Minister of Cooperative Governance and
Traditional Affairs and Another , in which the apex Court interpreted public
service and public administration as referring only to the national and provincial
spheres of government, thereby excluding the legislative branch. The Court
observed that:
‘As regards the other claims, I am unconvinced that they specifically trigger the application
of section 76. Section 195(4) of the Constitution deals with appointments in “public
administration” and section 197 deals with the “public service”. The assessment of the High
Court that “the ‘public service’ is not considered to include municipal employees’ cannot be
faulted. This because “public service” and “public administration” refer only to national and
provincial spheres of government.’11
[78] According to the applicant, this jurisdictional limitation is supported by
the PSC’s own prior institutional decisions where it refused to investigate
parliamentary matters on the same legal basis.
[79] Mr. Sithole characterises the PSC’s sudden shift in stance as an irrational
and unconstitutional exercise of power that offends the rule of law. He contends
that the presiding officers also acted without lawful authority because they have
no power to refer internal personnel matters to an external executive body,
especially when such administrative functions are legally reserved for the
Secretary to Parliament as the accounting officer.
[80] In addition to the jurisdictional challenge, the investigation is described
by Mr. Sithole as methodologically irrational and procedurally deficient , as the
investigative body of the PSC, in Mr. Sithole’s view, failed to maintain an open
and enquiring mind by ignoring relevant exculpatory evidence and neglecting to
11 South African Municipal Workers’ Union v Minister of Co -Operative Governance and Traditional Affairs &
Others [2017] ZACC 7; 2017 (5) BCLR 641 (CC) para 68.
interview material witnesses , and in so doing, violated the principle of legality
which demands rationality in both process and outcome.
[81] Mr. Sithole furthermore denies that the matter is moot, asserting that the
lawfulness of public power remains a live controversy and that an invalid report
continues to have practical legal effects as an official record.
[82] Finally, Mr. Sithole sought to justify the delays in the application, citing
the unprecedented disruptions caused by the national lockdown, maintaining
that the interests of justice require the court to overlook any perceived delay to
prevent the entrenchment of unconstitutional conduct.
The respondents’ grounds of opposition
[83] The first, second , and third respondents (the “respondents”) oppose the
relief on four primary bases.
[84] First, that the application is moot and this Court – as a court of first
instance – does not have jurisdiction to entertain it. They aver that Mr. Sithole
brought this review application because he was unsuccessful in overturning the
disciplinary action taken by Parliament against him before the CCMA , and h e
now seeks to undermine the conclusions reached in the disciplinary proceedings
by contending that they were premised on a flawed report.
[85] Secondly, that Mr Sithole delayed bringing this application for more than
a year after becoming aware of the PSC’s report. He initially contended12 that
the review must succeed in terms of PAJA , yet, he has not sought an extension
in terms of section 9 of PAJA for the late launching of the review.
12 In his founding affidavit.
[86] Thirdly, that the challenge is misguided in la w, as the report does not
constitute a ‘decision’ because it is n either final nor binding. The respondents
highlighted that t he courts have consistently made it clear that a
recommendation does not have a ‘direct, external legal effect’. There is,
accordingly, no decision capable of being reviewed and set aside.
[87] Fourthly, that the primary basis for this review rests on an incorrect
understanding of the PSC’s powers. Mr. Sithole contends that the PSC is only
entitled to investigate the public service and has no power to investigate
employment matters concerning Parliament.
[88] The respondents argued that this argument is flawed, as it overlooks
section 196(4) of the Constitution,13 which empowers the PSC to investigate
both the public service and the public administration. Parliament forms part of
the public administration, and the PSC has an original constitutional power to
conduct an investigation in respect of the public administration.
First ground – the application is moot
[89] The central contention is that the litigation no longer presents a live
controversy and that any order granted by the court would serve no practical
purpose.
13 In terms of Section 196(4)(g) the powers and functions of the Commission are:
(f) either of its own accord or on receipt of any complaint-
(i) to investigate and evaluate the application of personnel and public administration practices, and to report
to the relevant executive authority and legislature.
(ii) to investigate grievances of employees in the public service concerning official acts or omissions and
recommend appropriate remedies.
(iii) to monitor and investigate adherence to applicable procedures in the public service; and
(iv) to advise national and provincial organs of state regarding personnel practices in the public service,
including those relating to the recruitment, appointment, transfer, discharge and other aspects of the careers of
employees in the public service; and
(g) to exercise or perform the additional powers or functions prescribed by an Act of Parliament.
[90] In amplification of the above, t he respondents argued that the applicant,
Mr. Sithole, seeks to challenge the report primarily to protect his reputation and
counter media narratives suggesting he was responsible for the tragic events
involving Mr . Garane. However, the report was commissioned specifically to
assist the family and Parliament in finding closure, a purpose distinct from the
disciplinary actions subsequently taken by Parliament.
[91] The respondents emphasised that the findings of misconduct against Mr .
Sithole were established during Parliament’s own internal disciplinary inquiry,
not solely by the Commission’s report. Mr . Sithole already attempted to
overturn these findings through the CCMA and was unsuccessful.
Second ground – the applicant unreasonably delayed bringing the application
[92] If the Court is satisfied that the application presents a live issue for
determination, the respondents contend that the applicant must still satisfy the
court that he approached it without unreasonable delay , whether under PAJA ,
alternatively, the principle of legality, both of which require applicants to act
expeditiously in approaching the courts. They emphasised that the reasons for
this are well -established: the rule of law requires legal certainty, clarity, and
predictability.
[93] In Khumalo and Another v MEC for Education, KwaZulu Natal ,14 the
Constitutional Court held that this requires a consideration of whether the delay
is unreasonable or undue; and whether the court should overlook the delay.15
14 Khumalo and Another v MEC for Education, KwaZulu Natal [2013] ZACC 49; 2014 (5) SA 579 (CC).
15 Ibid paras 49-52.
[94] The unreasonableness of the delay turns on the explanation provided and
whether the full period for the delay is accounted for.
[95] The respondents argued that Mr. Sithole’s explanation for the delay is
entirely unsatisfactory and demonstrate that the true purpose of his application
is not to set aside the report, but rather to undermine the disciplinary
proceedings against him. They highlighted that i t was only after the attempts to
challenge the disciplinary proceedings failed, that Mr. Sithole directed his attack
to the report.
[96] The respondents contend that no basis is laid for the Court to overlook the
delay because no practical purpose is served by considering the report of the
PSC issued more than 6 years ago , the prospects of success in setting aside the
report are poor because the report i s not reviewable; and, even if the report is
reviewable, the grounds of review are entirely without merit , as they proceed
from a misunderstanding of the law and the facts.
Delay and the Declaratory Relief
[97] The respondents further assert that the question of delay applies to both
the review relief and the declaratory relief.
[98] It is trite that d eclaratory relief is discretionary. The court’s power to
grant this relief is regulated by section 21(1)(c) of the Superior Courts Act, 10
of 2013. A court may exercise its discretion to grant a declaratory order where
there is ‘an existing, future or contingent right or obligation’.
[99] The respondents argued that Mr. Sithole makes out no case for this Court
exercising its discretion to grant declaratory relief. He does not explain what
right or obligation warrants this Court exercising its direction in favour of
granting the relief , and the application is not one that concerns the broader
public interest – it only concerns Mr . Sithole’s attempt to impugn the
proceedings by Parliament against him through an ‘erroneous’ challenge to the
PSC’s report.
[100] A delay in approaching the courts for declaratory relief is a reason not to
grant the relief. In NAPTOSA and Others v Minister of Education, Western
Cape Government and Others,16 this Court explained that:
‘I consider that the substantial delay in bringing these proceedings is another reason for
exercising discretion against the grant of a declaratory order. It is well established law that
undue delay may be taken into account in exercising a discretion as to whether to grant an
interdict or a mandamus, or to grant relief in review proceedings. The declaratory order,
being as flexible as it is, can be used to obtain much the same relief as would be vouchsafed
by an interdict or a mandamus. Where it is necessary that a record of proceedings be put
before the court, a declaratory order could serve as a review. A court, in exercising its
discretion whether to grant a declaratory order should, accordingly, in an appropriate case
weigh the same considerations of ‘justice or convenience’ as it might do in the case of an
interdict or a review.’17
Third Ground - the PSC report is not reviewable, and the declaratory order is
misplaced
16 NAPTOSA and Others v Minister of Education, Western Cape Government and Others [2000] ZAWCHC 9;
2001 (2) SA 112 (C).
17 Ibid at 126 E-G.
[101] This ground of objection arises from the respondents’ contention that the
PSC report cannot be subjected to a judicial review because it does not
constitute a final administrative decision.
[102] They assert that a review is only permissible against actions that have a
direct, external, and legal effect, and one that prejudices the rights or interests of
the applicant. Because the report, and the recommendations contained therein,
are non -binding in nature, they lack the legal finality required to trigger a
review.
[103] The report merely permits a different functionary to consider the
conclusions reached and to decide whether and how to act thereupon.
[104] The respondents contend that the decision of the functionary who acts on
an investigation report may be impugned through a review, but the underlying
report may not. In this regard, reliance was placed on the Constitutional
decision in Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro -Tech
Systems (Pty) Ltd and Another, where the court held that:
‘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 investigate and the process of investigation, which excludes a determination of
culpability, could itself adversely affect the rights of any person, in a manner that has a direct
and external legal effect.’18
The merits of the review and declaratory relief
Mootness
18 Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro -Tech Systems (Pty) Ltd and Another [2010]
ZACC 21; 2011 (1) SA 327 (CC) para 38.
[105] It is common cause that the recommendations contained in the report
have been acted upon by Parliament. Disciplinary proceedings were brought
against the applicant, and he was found guilty of all three charges and issued
with a final written warning which has expired.
[106] In Minister of Justice and Correctional Services v Estate Stransham-Ford
and Others,19and in the more recent decision of MEC for Health, Gauteng v Dr
Regan Solomons (Regan),20 the SCA confirmed the rule against High Courts
determining moot matters where it held that:
‘This Court, in Minister of Justice and Correctional Services and Others v Estate Late James
Stransham-Ford and Others (Stransham -Ford), made it clear that it was not open to high
courts sitting as courts of first instance to make orders on causes of action that had been
extinguished merely because they think that their decision would have broader societal
implications. The Court in Stransham-Ford said courts of first instance are not vested with the
same power conferred upon a court of appeal, which may exercise its jurisdiction to
determine a matter because ‘a discrete legal issue of public importance arose that would
affect matters in the future and on which the adjudication of this court was required.’ ’
(emphasis added).
[107] I accept that the implemented disciplinary findings and CCMA ruling
exist independently of the report and that if the report were to be reviewed and
set aside, it would not undo the legal consequences thereof. The legal sanction
(the final written warning) has been imposed and lapsed on 13 July 2021. It
therefore cannot be overturned.
19 Minister of Justice and Correctional Services v Estate Stransham-Ford and Others [2016] ZASCA 197; 2017
(3) SA 152 (SCA) para 25.
20 MEC for Health, Gauteng v Dr Regan Solomons (1089/2023) [2024] ZASCA 184 (30 December 2024) para
28.
[108] This all needs to be considered against the backdrop that as a High Court,
this court’s jurisdiction is limited to resolving actual, ongoing legal disputes.
[109] The applicant argued that the decision to refer and the decision to accept
the referral, both of which are impugned , and whether the PSC lawfully
exercised the power to investigate the matter , remains a clear and justiciable
issue, as those decisions, in fact and in law, still exist , and the report is a public
record.
[110] The applicant further contended that the r elief sought has a practical
effect, as it corrects an unlawful exercise of public power and r estores the
constitutional boundaries between parliament and the PSC , preventing future
transgressions and ensur ing that the public record does not bear the imprint of
unconstitutional conduct.
[111] In my view, the review of the court, which is recommendatory in nature,
no longer presents a live or triable issue.
[112] The high water mark of the applicant’s case in this regard appears to be
his contention that the setting aside of the report is necessary to vindicate his
constitutional rights. It is not clear in what manner this can be achieved,
particularly having regard to what in my view has been a failure to show that his
constitutional rights were infringed by the report, or that the setting aside will
have the effect of restoring his allegedly violated rights.
[113] The applicant failed to show that he will be adversely affected if the
review is unsuccessful. This court does not sit to determine legally interesting
questions.
[114] It is clear from the Regan21decision that even if an issue of constitutional
importance arises, it is not an issue which on its own can be determined by a
court of first instance.
[115] One of the issues which this Court pointedly raised with the applicant is
why, if his right s were being infringe d by the investigation , did he not bring
interdict proceedings to stop the investigation from proceeding or the report
from being provided. His advocate, Mr. Khoza, was unable to answer and noted
that this issue was not dealt with in the applicant’s papers.
[116] The fact that the report has damning consequences does not assist the
applicant. Even if the review were to be successful, it will not reverse the
findings or reputational consequence for the applicant. The reputational
consequences result from what Parliament decided to do with the report. He was
disciplined and a sanction was imposed. The applicant participated in those
disciplinary proceedings, and he was unsuccessful.
[117] The challenge to this report is quintessentially a legal issue. What this
Court is asked to decide will have no effect on the applicant.
[118] On this basis alone , the application must fail. Mootness is a bar to this
Court exercising its jurisdiction to hear the matter because no practical purpose
will be served by the declaratory relief sought by Mr . Sithole, as well as the
alternative review relief.
[119] Mindful of the SCA’s injunction for lower courts to deal with all issues
which present before them, even if a single issue may dispose of a matter.22
21 Ibid fn 26 para 27.
22 S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici
Curiae) [2002] ZACC 22 ; 2002 (6) SA 642 (CC) para 21 ; Maharaj and Others v Mandag Centre of
Investigative Journalism NPC and Others 2018 (1) SA 471 (SCA) para 26; Minister of Home Affairs and Others
v Somali Association of South Africa and Another 2015 (3) SA 545 (SCA) para 18.
[120] The implementation of the recommendations alone may not render the
relief sought moot. The cardinal question is whether , such report, if indeed it is
a reviewable decision, has a direct and external legal effect on the applicant’s
rights. I shall return to this issue below.
Is the delay unreasonable?
[121] Mr Sithole relies on the disciplinary proceedings against him as the
explanation for his delay. The obvious flaw in this reason for delay is that the
disciplinary proceedings are separate proceedings from the PSC’s report.
[122] The respondents argued, correctly in my view, that Mr Sithole should
(and could) have challenged the report immediately after becoming aware of it.
He chose not to do so and has failed to provide a cogent explanation for his
failure to do so.
[123] In my view, absent such an explanation, the delay in bringing the review
proceedings is unreasonable and the reliance on the alternative relief , under the
principle of legality, appears to be an impermissible attempt to circumvent the
provisions of PAJA, including the 180 day time bar.
[124] Turning now to the central issue – is the report of the PSC reviewable?
[125] It is undisputed that the report and the recommendations contained
therein were not binding on Parliament.
[126] The Constitutional Court in Viking Pony found it ‘unlikely that a decision
to investigate and the process of investigation, which excludes a determination
of culpability, could itself adversely affect the rights of any person, in a manner
that has a direct and external legal effect.’
[127] It therefore falls to be determined whether the findings and
recommendations contained in the report are final and determin ative of Mr.
Sithole’s rights.
[128] In my view , the answer must be no. The findings represent the views,
culminating in non -binding recommendations of the PSC and serve to identify
irregularities rather than resolve them in terms of a binding and final decision or
action.
[129] A further string to the applicant’s bow is that the Commission cannot
investigate parliamentary employees, but only employees in public service.
[130] In terms of section 19 6(4)(f) of the Constitution, the PSC is specifically
empowered to investigate personnel practices and public administration
practices and report to the relevant executive authority and legislature. This
provision indicates that the PSC’s investigative mandate encompasses reporting
to legislatures, which implies a degree of oversight over personnel and
administrative practices within these bodies.
[131] While section 197 of the Constitution primarily addresses the structure
and functioning of the public service, it does not explicitly limit or extend the
PSC’s investigative powers to the legislature. However, section 196(4)(f) (i)
provides a clear basis for the PSC to investigate and report on personnel and
public administration practices to the legislature. It therefore appears that its
mandate includes such investigations.23
23 See also South African Municipal Worker 's Union v Minister of Co -Operative Governance and Traditional
Affairs (3558/2013) [2016] ZAGPPHC 733 (23 February 2016) para 111. Section 196(4) enumerates the PSC’s
[132] I am therefore satisfied that the Commission acted within its legal powers
when it accepted the request to investigate the circumstances surrounding Mr.
Garane’s suicide and when it conducted such investigation and prepared the
report.
[133] Moreover, notwithstanding Mr. Sithole’s contentions to the contrary, there
does not appear to be any indication that the steps taken in the investigation
culminating in the report were irrational, procedurally unfair or biased. The
allegations of bias arise from Parliament’s subsequent decision to discipline the
applicant rather than the conduct of the Commission itself.
[134] As the report does not reach the threshold of a reviewable decision, the
review application must fail on this fundamental basis.
[135] Regarding the declaratory relief sought, I find that the applicant has failed
on the papers to establish a right to such relief. He has not shown that there is
any broader public interest at stake. This relief must therefore also fail.
Can the applicant seek the review of the impugned decisions under ‘further
and / or alternative relief?
[136] The applicant filed a further note to address the question of whether the
Court is empowered, under the rubric of the prayer for ‘further and/or
alternative relief’ to grant an order reviewing and settings aside the impugned
decisions.
powers and functions, which include investigating, monitoring, and evaluating the organisation and
administration of the public service, as well as personnel practices.
[137] Relying on the principles set forth in Luwalala and Others v Port Nolloth
Municipality,24 the respondents argue that such relief is impermissible.
[138] For the alternative relief to be valid, it must be supported by the facts
already on record and must not introduce an entirely new cause of action.25
[139] The applicant contend ed that the relief sought in this instance is entirely
consistent with the facts already pleaded , as t he applicant’s case has always
been that the presiding officers lacked the legal authority to refer the matter and
that the P SC lacked the jurisdiction to investigate it. Because these factual and
legal foundations were established in the founding affidavit to challenge the
final report, no additional facts are required to challenge the preceding decisions
that led to that report.
[140] Furthermore, the applicant argues that the alternative relief is a logical
extension of the main relief requested. The notice of motion originally sought to
set aside the final report of the Commission. Since the report is the direct
product of the initial decisions to refer and investigate, those underlying
decisions are inextricably linked to the report itself.
[141] If the court finds a lack of authority at the start of the process, the proper
legal remedy is to set aside the decisions that set the process in motion. The
relief is thus a necessary complement to the express claim rather than a
departure from it.
[142] The applicant emphasised that the respondents were well aware of the
applicant’s intentions, as it was expressly noted in the replying affidavit that
they would seek this specific review under the alternative relief prayer if
24 Luwalala and Others v Port Nolloth Municipality 1991 (3) SA 98 (C).
25 Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272.
necessary. Additionally, a formal application to amend the notice of motion was
served on the respondents shortly before the hearing , and the legal and factual
basis for the relief was fully ventilated and that no prejudice would result from
the court granting such an order.
[143] The applicant contended that the respondents’ reliance on the Luwalala
judgment is misplaced, as in that matter the party attempted to use the prayer for
alternative relief to introduce new legal grounds, such as land ownership and
statutory contraventions, which had not been foreshadowed in the founding
papers, whereas in the current matter the applicant merely seeks a specific
remedy based on the same jurisdictional challenge that he has always relied
upon.
[144] I accept that the respondents would not have been taken by surprise by
the relief sought under the heading of further and / or alternative relief,
however, in my view, it takes the matter no further. For all the reasons set out
above, the applicant has failed to make out a case for the review and setting
aside of the impugned decisions and this relief, under whichever rubric it is
brought, cannot be granted.
Costs
[145] Turning now to the issue of costs. The applicant’s stance regarding costs
was that the respondents’ conduct should be censured , as both Parliament and
the PSC acted with the full knowledge that the Commission lacked jurisdiction
over parliamentary personnel , as they acknowledged in the report that
parliamentary administration exists outside the public service, and by its
previous refusal to investigate a similar matter for that very reason.
[146] The applicant argued that by advancing a jurisdictional defen ce that
contradicts their earlier stance, the respondents are attempting to retrospectively
justify an exercise of public power they knew they did not have, which he
characterises as a serious violation of the principle of legality.
[147] The applicant contends that an adverse costs order is necessary to uphold
the rule of law , and that the complexity and constitutional weight of the
litigation justification for the costs of two counsel.
[148] Should the court find against the applicant, he argued that the Biowatch26
principle should protect him from an adverse costs order, as the application was
brought in good faith to clarify the limits of institutional power and address
matters of significant constitutional importance.
[149] The respondents argued that Biowatch does not apply where litigation is
manifestly inappropriate, such as when the issue is moot. They highlighted that
the a pplicant was aware of the mootness of his application and yet persisted
with that challenge.
[150] In support of their contention that the costs should follow the event, the
respondents further highlighted that the manner in which the applicant has
conducted the application is also inappropriate. The replying affidavit was filed
seven months out of time , without seeking an indulgence or applying for
condonation for the late filing thereof. The applicant also filed his heads of
argument after the respondent, wilfully disregarding the practice directions of
this Court and sought an amendment on the day of the hearing.
[151] The respondents sought an order for the costs of two counsel where
employed, with costs of counsel to be taxed on Scale C.
26 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC).
[152] In my view , the applicant would have at all times been aware of the
insurmountable challenges he faced in obtaining the relief sought. In my view ,
his decision to persist in the face of the grounds of opposition raised and the
manner in which he conducted the litigation, as argued by the respondents, is
manifestly appropriate and does not qualify for the protection afforded by
Biowatch.
[153] I am satisfied that the matter warranted the employment of two c ounsel
and considering the complexity of the matter, costs of counsel on Scale C is
appropriate.
Conclusion
[154] In the circumstances the application falls to be dismissed with costs,
including the costs of two counsel where so employed, such costs to be taxed on
Scale C.
Order
[155] The following order shall issue:
(a) The application is dismissed with costs
(b) Including the costs of two counsel where so employed, such costs to be
taxed on Scale C.
__________________________
M HOLDERNESS
JUDGE OF THE HIGH COURT
Appearances
Applicant: Adv S Khoza and Adv K Ngqata
Instructed by: Mohau Romeo Tsusi Law t/a MRT Law Inc
Respondents
First to Third Respondents: Adv WRE Duminy SC and Adv K Perumalsamy
Instructed by: The State Attorney