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[2018] ZASCA 15
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Minister of Home Affairs and Another v Public Protector of the Republic of South Africa (308/2017) [2018] ZASCA 15; [2018] 2 All SA 311 (SCA); 2018 (3) SA 380 (SCA) (15 March 2018)
Links to summary
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 308/2017
In
the matter between:
MINISTER
OF HOME AFFAIRS
FIRST
APPELLANT
DIRECTOR-GENERAL
OF THE DEPARTMENT
SECOND APPELLANT
OF
HOME AFFAIRS
and
THE
PUBLIC PROTECTOR OF THE REPUBLIC OF
RESPONDENT
SOUTH
AFRICA
Neutral
citation:
Minister
of Home Affairs v The Public Protector
(308/2017)
[2018] ZASCA 15
(15 March 2018)
Coram:
Lewis,
Majiedt and Willis JJA and Plasket and Mothle AJJA
Heard:
28
February 2018
Delivered:
15
March 2018
Summary:
Constitutional
and administrative law – review of investigative, reporting and
remedial powers of the Public Protector –
such powers not of an
administrative nature – may not be reviewed in terms of
s 6
of
the
Promotion of Administrative Justice Act 3 of 2000
– may be
reviewed in terms of the principle of legality – no ground of
review established.
ORDER
On appeal from:
Gauteng Division of the
High Court, Pretoria (Prinsloo J sitting as court of first instance):
The appeal is dismissed
with costs, including the costs of two counsel.
JUDGMENT
Plasket
AJA (Lewis, Majiedt and Willis JJA and Mothle AJA concurring)
[1]
Mr Reginald Ananius Marimi (Marimi), the second respondent in the
court below, was employed by the Department of Home Affairs
(the
Department) and stationed at the South African embassy in Cuba, where
he held the position of first secretary. As a result
of complaints
concerning his conduct, made by the Cuban government to the South
African ambassador, he was recalled to South Africa.
One consequence
of this was that his cost of living allowance (COLA) was stopped. He
was also threatened with disciplinary proceedings,
which never
materialised.
[2]
He lodged a complaint with the Public Protector, the respondent in
this appeal and the first respondent in the court below,
against the
Department, alleging maladministration on its part in relation to his
transfer from Cuba to South Africa. The Public
Protector investigated
Marimi’s complaint. She produced a preliminary report which she
provided to the parties for comment.
Then she produced a final report
in which she found that the Department was indeed guilty of
maladministration in relation to Marimi.
She directed that the
Department take certain remedial action to redress Marimi’s
grievance.
[3]
The political and administrative heads of the Department – the
Minister of Home Affairs and her Director-General –
brought an
application, as first and second applicants, in the Gauteng Division
of the High Court, Pretoria, to review and set
aside the Public
Protector’s report, entitled ‘Unjust Forfeiture’,
or its findings and the remedial action that
it directed the
Department to take. The application was dismissed with costs by
Prinsloo J. He nonetheless granted leave to appeal
to this court.
[4]
When the application was launched and when it was argued, the effect
of the Public Protector’s power to order remedial
action to be
taken by errant organs of state had not been definitively decided.
The only judicial pronouncement on the issue was
the judgment in
Democratic
Alliance v South African Broadcasting Corporation Ltd &
others
.
[1]
It had held that the Public Protector’s ‘orders’
were little more than recommendations.
[5]
This issue has now been determined in this court in the appeal from
that decision, in
South
African Broadcasting Corporation SOC Ltd & others v Democratic
Alliance & others
,
[2]
and by the Constitutional Court in
Economic
Freedom Fighters v Speaker, National Assembly & others
.
[3]
In effect, the
SABC
(SCA)
held, and the
Economic
Freedom Fighters
case confirmed, that the
Oudekraal
principle
[4]
applies to decisions of the Public Protector: her decisions cannot be
ignored (or trumped by parallel processes) and unless they
are set
aside on review, they must be obeyed and given effect to. In this
sense, they are binding and not mere recommendations.
[6]
In what follows, I shall set out the facts; consider the powers and
functions of the Public Protector, as well as their source;
determine
whether the Public Protector’s exercise of power in this case
is to be reviewed in terms of the Promotion of Administrative
Justice
Act 3 of 2000 (the PAJA) or the principle of legality that is part of
the founding constitutional value of the rule of
law; consider the
grounds of review relied upon by the appellants and decide whether
any of them have been established; and make
the appropriate order
consequent on the last-mentioned findings.
The
facts
[7]
On 17 February 2010, while Marimi was stationed in Cuba, the Cuban
Deputy Minister of Foreign Affairs met with the South African
ambassador. He complained about the conduct of Marimi and a second
South African diplomat who occupied the position of second secretary
at the embassy. The complaints were reduced to writing in an
aide
memoire
dated 20 February 2010.
[8]
The allegations made against the two were serious but lacked detail.
In respect of Marimi, the a
ide
memoire
stated that he had been ‘involved‘, with the second
secretary, in an incident in the city of Cienfuegos on 15 March
2009
when the second secretary ‘in a state of intoxication, insulted
a group of citizens’ and threw a can of beer at
them, refused
to identify himself and was disrespectful to and insulted two ‘patrol
officers’; that Marimi had been
‘involved in other
serious traffic laws violations’; that he had ‘tried to
go through an unauthorised area and
he had to be detained by State
Security agents’; and that in December 2009, he had ‘attacked
physically and insulted
in a disrespectful manner an Airport Customs
official’.
[9]
The
aide
memoire
proceeded to record that ‘[i]n recognition of the excellent
relations between Cuba and South Africa, Deputy Minister Rodriguez
informed that the Ministry of Foreign Affairs had agreed that the
Deputy Minister summon the Ambassador with all these elements
and,
without requesting him to get them out of the country or to declare
them
personae
non grata
,
point out to him emphatically that new incidents would not be
tolerated’. It concluded by stating that the Cuban Ministry
of
Foreign Affairs ‘hopes that measures deemed appropriate will be
taken in order to prevent the recurrence of such deplorable
events’.
[10]
Despite the fact that the Cuban government did not insist that action
should be taken against Marimi, he was nonetheless recalled
to South
Africa. The letter informing him of his recall gave him notice that
disciplinary action would be taken against him.
[11]
When, about a month after his return to South Africa, Marimi had
heard nothing further from the Department, he instructed an
attorney
to write to it to ascertain progress in the disciplinary action that
had been threatened. That and further letters received
no response
from the Department. About four months after his return to South
Africa, however, he received a letter from the Department
that gave
him five days to make representations as to why disciplinary action
should not be taken against him. He made his representations
promptly. He heard nothing further from the Department.
[12]
Eventually, he lodged a complaint with the Public Protector.
Essentially, his complaint was that the process followed by the
Department when he was recalled from Cuba was unfair, the withdrawal
of his COLA on his return was improper and the Department’s
failure to initiate and finalise disciplinary action against him had
caused prejudice to his reputation.
[13]
In the Public Protector’s final report, she concluded that: (a)
Marimi’s recall from Cuba was procedurally flawed
and
constituted maladministration; (b) the delay in taking disciplinary
action against Marimi violated a provision of the Public
Service
Disciplinary Code and Procedures, was unreasonable and improper, and
constituted maladministration; (c) the decision to
stop paying Marimi
his COLA contravened a provision of the Foreign Service Dispensation,
was improper and constituted maladministration;
and (d) Marimi had
been prejudiced by the Department’s maladministration in that
he had been treated unfairly, had been unfairly
denied payment of his
COLA, his name and reputation had been tarnished and his human
dignity had been impaired.
[14]
The remedial action that the Public Protector directed the Department
to take was the following: (a) the Director-General was
to ensure
that Marimi’s COLA was paid to him, together with interest,
from the date of his recall from Cuba until the date
of his transfer
from the Department to the Department of Correctional Services; (b)
the Director-General was to investigate the
reasons for Marimi’s
case not being dealt with properly and was to take action against
anyone who was at fault; and (c) the
Director-General was to ensure
that a letter was written to Marimi to apologise to him for the
prejudice he suffered as a result
of the Department’s
maladministration.
The
Office of the Public Protector
[15]
The Office of the Public Protector was first created by the interim
Constitution of 1993.
[5]
What
was envisaged was an ombud-type institution to investigate and report
on maladministration and other similar maladies within
the government
and its public service with the aim of ensuring ethical
governance.
[6]
While the
institution created by the interim Constitution certainly had more
extensive powers than a previous, similar body –
the
Advocate-General created after the Information Scandal of the
1970s
[7]
– the powers of
the Public Protector were further enhanced by the 1996 Constitution.
[16]
Section 181(1) of the Constitution established a number of
institutions, generally referred to as Chapter 9 institutions, which
were to strengthen constitutional democracy. They are the Public
Protector, the South African Human Rights Commission, the Commission
for the Promotion and Protection of the Rights of Cultural, Religious
and Linguistic Communities, the Commission for Gender Equality,
the
Auditor-General and the Electoral Commission.
[17]
In terms of s 181(2) all of the Chapter 9 institutions are
‘independent, and subject only to the Constitution and the
law,
and they must be impartial and must exercise their powers and perform
their functions without fear, favour or prejudice’.
Section
181(3) places an obligation on other organs of state to ‘assist
and protect these institutions to ensure the independence,
impartiality, dignity and effectiveness of these institutions’.
Section 181(4) prohibits persons or organs of state from
interfering
with the functioning of any Chapter 9 institution. Section 181(5)
provides that they are accountable to the National
Assembly and that
they are each required to report to it on the fulfilment of their
mandates annually at least.
[18]
Sections 182 and 183 of the Constitution deal specifically with the
Public Protector. Section 182(1) provides:
‘
The
Public Protector has the power, as regulated by national legislation-
(a)
to investigate any conduct in state affairs, or in the public
administration in any
sphere of government, that is alleged or
suspected to be improper or to result in any impropriety or
prejudice;
(b)
to report on that conduct; and
(c)
to take appropriate remedial action.’
[19]
Section 182(2) allows for these powers to be supplemented by national
legislation. Section 182(3) places only one limit on
the Public
Protector’s power: she may not investigate ‘court
decisions’. Section 182(4) places an obligation
on the Public
Protector: her office must be ‘accessible to all persons and
communities’. Section 182(5) requires the
Public Protector’s
reports to be ‘open to the public unless exceptional
circumstances, to be determined in terms of
national legislation,
require that a report be kept confidential’.
[20]
Section 183 prescribes the Public Protector’s tenure of office:
a person may be appointed as Public Protector for a non-renewable
term of seven years.
[21]
While the primary source of the Public Protector’s powers is
the Constitution, the
Public Protector Act 23 of 1994
is the
legislation contemplated by
s 182(2)
that supplements her powers.
[8]
[22]
Section 6
is the heart of the
Public Protector Act. It
adds to the
matters that the Public Protector may investigate, specifies matters
that she cannot investigate or may decline to
investigate and
specifies the procedure for the making of complaints to the Public
Protector.
[23]
Section 6(4)(a)
sets out the matters that the Public Protector may
investigate. It provides:
‘
The
Public Protector shall, be competent-
(a)
to
investigate, on his or her own initiative or on receipt of a
complaint, any alleged-
(i) maladministration
in connection with the affairs of government at any level;
(ii) abuse or
unjustifiable exercise of power or unfair, capricious, discourteous
or other improper conduct or
undue delay by a person performing a
public function;
(iii) improper or
dishonest act, or omission or offences referred to in
Part 1
to
4
, or
section 17
,
20
or
21
(in so far as it relates to the aforementioned
offences) of Chapter 2 of the
Prevention and Combating of Corrupt
Activities Act, 2004
, with respect to public money;
(iv) improper or unlawful
enrichment, or receipt of any improper advantage, or promise of such
enrichment or advantage, by
a person as a result of an act or
omission in the public administration or in connection with the
affairs of government at any
level or of a person performing a public
function; or
(v) act or omission
by a person in the employ of government at any level, or a person
performing a public function,
which results in unlawful or improper
prejudice to any other person.’
Section
6(5)
empowers the Public Protector to investigate similar misconduct
within institutions in which ‘the State is the majority or
controlling shareholder or of any public entity as defined in section
1 of the Public Finance Management Act, 1999 (Act 1 of 1999)’;
and s 6(7) allows her to investigate attempts to commit the types of
misconduct specified in ss 6(4) and (5).
[24]
Even if a complaint made to the Public Protector falls within her
jurisdiction, she may refuse to entertain the complaint in
certain
circumstances. Section 6(3) provides:
‘
The
Public Protector may refuse to investigate a matter reported to him
or her, if the person ostensibly prejudiced in the matter
is-
(a)
an
officer or employee in the service of the State or is a person to
whom the provisions of the Public Service Act, 1994 (Proclamation
103
of 1994), are applicable and has, in connection with such matter, not
taken all reasonable steps to exhaust the remedies conferred
upon him
or her in terms of the said Public Service Act, 1994; or
(b)
prejudiced
by conduct referred to in subsections (4) and (5) and has not taken
all reasonable steps to exhaust his or her legal
remedies in
connection with such matter.’
In
terms of s 6(9), generally speaking, a complaint that is within the
Public Protector’s jurisdiction will not be entertained
‘unless
it is reported to the Public Protector within two years from the
occurrence of the incident or matter concerned’.
She has a
discretion, however, where special circumstances exist, to entertain
complaints that are older than two years.
[25]
Section 6(1) specifies the way in which an investigation by the
Public Protector may be initiated. It provides:
‘
Any
matter in respect of which the Public Protector has jurisdiction may
be reported to the Public Protector by any person-
(a)
by
means of a written or oral declaration under oath or after having
made an affirmation, specifying-
(i) the nature of the
matter in question;
(ii) the grounds on
which he or she feels that an investigation is necessary;
(iii) all other
relevant information known to him or her; or
(b)
by
such other means as the Public Protector may allow with a view to
making his or her office accessible to all persons.’
Section 6(2) requires the
Public Protector and her staff to ‘render the necessary
assistance, free of charge, to enable any
person to comply with
subsection (1)’.
[26]
In
Public
Protector v Mail and Guardian Ltd & others
[9]
Nugent JA stressed the importance of the office of the Public
Protector, which he described as an ‘indispensable
constitutional
guarantee’, stating that it ‘provides what
will often be a last defence against bureaucratic oppression, and
against
corruption and malfeasance in public office that are capable
of insidiously destroying the nation’.
The
basis for the review – the PAJA or the principle of legality?
[27]
Review in terms of both the PAJA and the principle of legality stems
from the rule of law. Section 33(1) and (2) of the Constitution
as
well as the PAJA gives effect to the rule of law in respect of only
administrative action. The principle of legality gives effect
to the
rule of law in relation to all other exercises of public power, such
as executive power. Woolf, Jowell and Le Sueur make
this point when
they say that as a general principle, the rule of law ‘has
provided the major justification for constraining
the exercise of
official power, promoting the core institutional values of legality,
certainty, consistency, due process and access
to justice’.
[10]
[28]
An applicant for judicial review does not have a choice as to the
‘pathway’ to review: if the impugned action is
administrative action, as defined in the PAJA, the application must
be made in terms of s 6 of the PAJA; if the impugned action
is some
other species of public power, the principle of legality will be the
basis of the application for review.
[11]
[29]
In the
SABC
(SCA)
case,
[12]
this court was not
required to determine definitively whether the remedial action taken
by the Public Protector constituted administrative
action. It left
the issue open. In the court below in this matter, Prinsloo J held
that the Public Protector’s exercises
of power were subject to
review in terms of the PAJA.
[13]
In
South
African Reserve Bank v Public Protector & others
,
[14]
Murphy J concluded that the PAJA applied to a review of remedial
action ordered by the Public Protector. In the most recent
pronouncement
on the issue, a full court in
Absa
Bank Limited & others v Public Protector & others
,
[15]
also concluded that the remedial action ordered by the Public
Protector was subject to review in terms of the PAJA.
[30]
Administrative action is defined in s 1 of the PAJA to mean:
‘
.
. . any decision taken, or any failure to take a decision, by-
(
a
)
an organ of state, when-
(i)
exercising a power in terms of the Constitution or a provincial
constitution;
or
(ii)
exercising a public power or performing a public function in terms of
any legislation;
or
(
b
)
. . .
which
adversely affects the rights of any person and which has a direct,
external legal effect . . .’
A
number of types of public powers, such as executive, legislative,
judicial and prosecutorial powers, to name but four, are excluded
from the definition.
[31]
The definition refers at the outset to ‘a decision’. This
term is defined, also in s 1, to mean:
‘
.
. . any decision of an administrative nature made, proposed to be
made, or required to be made, as the case may be, under an empowering
provision, including a decision relating to-
(a)
making, suspending, revoking or refusing to make an order, award or
determination;
.
. .
(g)
doing or refusing to do any other act or thing of an administrative
nature’.
[32]
The elements of the definition contemplate (a) a decision of an
administrative nature (b) taken by an organ of state (c) when
it
exercises either a constitutional power or a public power in terms of
legislation (d) that adversely affects rights and (e)
has a direct,
external legal effect.
[33]
Section 239 of the Constitution defines an organ of state to mean:
‘
(
a
)
any department of state or administration in the national, provincial
or local sphere of government;
or
(
b
)
any other functionary or institution-
(i)
exercising a power or performing a function in terms of the
Constitution or a provincial
constitution; or
(ii)
exercising a public power or performing a public function in terms of
any legislation,
but
does not include a court or a judicial officer.’
[34]
The Office of the Public Protector is not a department of state or
administration and neither can it be said to be part of
the national,
provincial or local spheres of government: it is an independent body
that is answerable only to the National Assembly.
[16]
It is therefore not an organ of state as contemplated by subsection
(
a
)
of the definition. It is, however, an institution that exercises both
constitutional powers and public powers in terms of legislation.
It
is, consequently, an organ of state as contemplated by subsection (
b
)
of the definition.
[35]
The completed process
[17]
of
an investigation by the Public Protector that has found official
misconduct and ordered remedial action will usually adversely
affect
rights and have a direct, external legal effect.
[18]
The investigative, reporting and remedial powers of the Public
Protector are public powers
[19]
that derive from both the Constitution and ordinary parliamentary
legislation. None of the express exclusions from the definition
apply
to the Public Protector.
[36]
Administrative action concerns the taking of a decision. The type of
decision envisaged is a decision ‘of an administrative
nature’.
[20]
This is so
because administrative action generally involves ‘the conduct
of the bureaucracy (whoever the bureaucratic functionary
might be) in
carrying out the daily functions of the State’.
[21]
While I accept that public administration in a modern state
encompasses an extremely wide range of activities, including
investigative
functions and the exercise of powers of compulsion,
[22]
I am of the view that the factors listed below distinguish the
decisions of the Public Protector from decisions of an administrative
nature.
[37]
First, the Office of the Public Protector is a unique institution
designed to strengthen constitutional democracy. It does
not fit into
the institutions of public administration but stands apart from them.
Secondly, it is a purpose-built watch-dog that
is independent and
answerable not to the executive branch of government but to the
National Assembly. Thirdly, although the
State Liability Act 20 of
1957
applies to the Office of the Public Protector to enable it to
sue and be sued,
[23]
it is not
a department of state and is functionally separate from the state
administration: it is only an organ of state because
it exercises
constitutional powers and other statutory powers of a public nature.
Fourthly, its function is not to administer but
to investigate,
report on and remedy maladministration. Fifthly, the Public Protector
is given broad discretionary powers as to
what complaints to accept,
what allegations of maladministration to investigate, how to
investigate them and what remedial action
to order – as close
as one can get to a free hand to fulfil the mandate of the
Constitution. These factors point away from
decisions of the Public
Protector being of an administrative nature, and hence constituting
administrative action. That being so,
the PAJA does not apply to the
review of exercises of power by the Public Protector in terms of s
182 of the Constitution and
s 6
of the
Public Protector Act. That
means that the principle of legality applies to the review of the
decisions in issue in this case.
The
review
[38]
It does not matter in this case that the application for the review
is based on the principle of legality rather than on the
PAJA. No
procedural differences arise
[24]
and the grounds of review that apply in respect of both pathways to
review derive ultimately from the same source – the common
law
– although, in the PAJA, those grounds have been codified.
[25]
[39]
The appellants attack the Public Protector’s decision to
entertain the complaint made by Marimi on two principal grounds:
first, that the complaint was not made on oath; and secondly, that
the Public Protector entertained the complaint despite Marimi
not
having exhausted his remedies in terms of the Public Service Act
(Proclamation 103 of 1994) or other legislation. During the
course of
argument a third ground was raised that attacked the remedial action
of requiring the Department to pay Marimi’s
COLA.
The
complaint was not made on oath
[40]
In terms of
s 6(1)
of the
Public Protector Act a
complaint may be
reported to the Public Protector by means of a ‘written or oral
declaration under oath’
[26]
or by ‘such other means as the Public Protector may allow with
a view to making his or her office accessible to all persons’.
[27]
[41]
The Public Protector has a choice as to the form of the complaint. In
some instances, the nature of the complaint may be such
that she
takes the view that it must be made on oath, while in other matters,
a more informal procedure may be followed. In this
case, the Public
Protector obviously took the view that there was no need to take a
declaration on oath from Marimi. She was entitled
to hold that view
and always could have required the complaint to be made on oath at a
later stage if it became necessary. As it
happened, there was no need
for this because the facts upon which the complaint was based were
common cause. In any event, in terms
of
s 6(4)
, as soon as the Public
Protector heard Marimi’s version of events, she could have
instituted an investigation on her own
initiative.
[42]
In order to succeed, the appellants must establish that the Public
Protector acted irregularly in taking Marimi’s complaint
otherwise than on oath. She had the power to do exactly that. It does
not avail the Department to say that it would have been better
or
wiser to have exercised her discretion differently. That is not the
test on review. No irregularity and hence no ground of review
has
been established to justify the attack on the procedure followed by
the Public Protector in taking the complaint.
Alternative
remedies
[43]
The second ground of attack relates to
s 6(3)
of the
Public Protector
Act. In
terms of this provision, the Public Protector may decline to
investigate a complaint of maladministration if the complainant is
‘an officer or employee in the service of the State or is a
person to whom the provisions of the Public Service Act’
apply
and who has not ‘taken all reasonable steps to exhaust the
remedies conferred’ on him or her by that Act, or
any other
available remedy.
[44]
This attack has two legs. The first is that because Marimi’s
complaint was that he was the victim of an unfair labour
practice, he
had to seek his remedy in the
Labour Relations Act 66 of 1995
: in the
same way as the Labour Court has exclusive jurisdiction in labour
matters at the expense of the high courts,
[28]
so too the Public Protector’s jurisdiction was ousted in this
case. There is no merit in the argument. The Public Protector
is not
a court, does not exercise judicial power and cannot be equated with
a court. Her role is completely different to that of
a court and the
jurisdictional arrangements of the courts are entirely irrelevant to
a determination of the Public Protector’s
jurisdiction. It is
necessary to look to s 182 of the Constitution and the
Public
Protector Act to
ascertain the bounds of the Public Protector’s
jurisdiction. Neither excludes labour matters from her jurisdiction.
[45]
I turn now to the second related attack. As with
s 6(1)
, the Public
Protector had a discretion as to whether to take Marimi’s
complaint or not. The nature of this discretion and
the way in which
it is to be exercised is shaped by the nature and scope of her
mandate as provided for in the Constitution and
the
Public Protector
Act. Section
182 of the Constitution makes it clear that she has the
mandate to ‘investigate
any
conduct in state affairs, or in the public administration in any
sphere of government, that is alleged or suspected to be improper
or
to result in any impropriety or prejudice’;
[29]
and to report on that conduct and ‘take appropriate
remedial action’. The
Public Protector Act widens
this already
wide mandate even more, extending the Public Protector’s remit
to investigation, on her own initiative, of maladministration
and
similar maladies in respect of, for instance, ‘the affairs of
government at any level’,
[30]
or by ‘a person performing a public function,’
[31]
and also in respect of state owned enterprises and other public
entities.
[32]
[46]
The only express exclusion of the Public Protector’s
investigative jurisdiction is in relation to decisions of courts.
For
the rest, her jurisdiction is extremely wide and her mandate is
clear: she must seek out and effect the rectification of
maladministration,
through directing appropriate remedial steps so as
to ensure good governance. Seen in this context, and the wide
discretion vested
in her to enable her to achieve this end, the
functioning of
s 6(3)
becomes clear: it provides an opt-out for the
Public Protector in the circumstances contemplated by that section.
In other words,
it allows the Public Protector to decline to take a
complaint that is within her jurisdiction if she has reason to do so.
The acceptance
of a complaint, when the circumstances envisaged by
s
6(3)
are present, is the default position.
[47]
The appellants have failed to establish any ground of review in terms
of which the Public Protector’s decision not to
opt-out, and
instead to investigate Marimi’s complaint, may be set aside.
Payment
of the COLA
[48]
The two points that I have dealt with above were the only issues
canvassed in the appellants’ heads of argument and in
a summary
of their argument handed to the court at the hearing of the matter.
During the course of his address, however, Mr Cassim,
who appeared
with Ms Freese for the appellants, also submitted that the Public
Protector’s decision to order the remedial
action of payment of
Marimi’s COLA was reviewable on the basis of an error of law,
unreasonableness and because it ‘induced
a sense of shock’.
(The last ground can be left out of account, not being a ground of
review but a measure of misdirection
when a sentence is appealed
against.)
[49]
In the founding affidavit, the Director-General of the Department
stated:
‘
117
The Public Protector misconstrued the purpose of a cost of living
allowance and understood it to be
a benefit. The cost of living
allowance is not a benefit but an allowance to an employee who is
posted in a foreign country by
the Department. The allowance is due
to an employee as long as that employee is resident in a foreign
country as part of a foreign
mission. When an employee is in the
Republic he is not entitled to COLA.
118
The finding by the Public Protector that the second respondent was
entitled to COLA despite that
he was not in Cuba for the 6 month
period between June and November 2010 is factually and legally
incorrect. It is a finding that
no reasonable person in the position
of the Public Protector could have made.’
[50]
The Public Protector explained her decision in detail in her final
report. She said:
‘
7.4.4
In its response to the provisional report, the Department did not
dispute that in terms of Paragraph 6.2.1(iii)
of the Foreign Service
Dispensation, 2010, the DPSA letter dated 22/02/2006, which provides
that: “
if an official
is recalled due to a Labour Relations action he/she is regarded as
being on official duty and hence paragraph 6.2.1(iii)
of COLA will
apply
”, is applicable
to the complainant. (own emphasis).
7.4.5
Paragraph 6.2.1(iii) of COLA provides that a designated official
absent from Mission on official duty for
a period of 1 to 60 days is
entitled to 100% of the applicable COLA amount payable whether
Accompanied COLA (AC) or Unaccompanied
COLA (UC). Further that a
designated official absent from the Mission on official duty for a
period of 61 days and more is entitled
to 50% of the applicable COLA
amount payable whether AC or UC.
7.4.6
The Department has not provided any evidence to suggest that the
Complainant was recalled or withdrawn for
any other reason(s) except
for a labour relations action on the basis of his alleged misconduct.
The fact that the Department contended
in its response to the
provisional report that the Complainant knew or reasonably ought to
have known that he would not be sent
back to Cuba, if he had to
collate all his personal effects, does not detract from the fact that
he was withdrawn on account of
a labour relations action.
7.4.7
On proper construction Clause 6.2.1 of the Foreign Service
Dispensation does not support the Department’s
contention that
once withdrawn from a Foreign Service mission as in the circumstances
of the Complainant, COLA does not become
applicable, except for
providing that in the case of the Head of Mission who is absent from
the mission because of being recalled
after 31 days and more and a
designated official absent from duty on unpaid leave, 0% COLA is
payable. Clause 6.2.1 does not make
reference to a person in the
circumstances of the Complainant other than the reference made by the
DPSA letter dated 22/02/2006
as alluded above.’
[51]
In the founding affidavit, no basis is laid for the assertion that
the Public Protector’s conclusion is factually and
legally
incorrect as well as unreasonable. As the onus rests on an applicant
in judicial review proceedings to establish the grounds
of review
upon which he or she relies,
[33]
the Director-General’s bare averments of irregularity are
insufficient.
[52]
The least I would have expected to sustain the allegation of error of
law is to be provided with paragraph 6.2.1 of the Foreign
Service
Dispensation, so that we could determine whether an error of law had
been committed. That was not done and in the face
of that omission,
the Public Protector’s interpretation of it stands
unchallenged.
[53]
As for the allegation that the Public Protector committed an error of
fact, I am not sure what that error of fact might have
been because
it has not been identified. In any event, it is only errors of fact
(of a non-jurisdictional nature) in a very narrow
band that are
reviewable (as an incidence of the principle of legality):
[34]
generally speaking, errors of fact are not reviewable.
[35]
[54]
Finally, no attempt has been made to identify the basis for the
allegation of unreasonableness. If it is alleged that the decision
is
irrational, that, in the light of the passage in the final report
that I have quoted, is unsustainable. If the unreasonableness
is said
to lie in the effect of the decision, no factual foundation has been
laid for any suggestion that it is disproportional.
[55]
In the result, the challenge to the ‘award’ of Marimi’s
COLA is devoid of merit and the appellants have not
established a
ground of review to justify its setting aside.
Conclusion
[56]
I have concluded that the constitutional and statutory powers and
functions vested in the Public Protector to investigate,
report on
and remedy maladministration are not administrative in nature and so
are not reviewable in terms of
s 6
of the PAJA. This being so, the
Public Protector’s exercise of her core powers and functions is
reviewable on the basis of
the principle of legality that stems from
the founding constitutional value of the rule of law. On the facts,
however, I have found
that the appellants have failed to establish
any ground of review. That being so, the appeal must fail.
[57]
I make the following order.
___________________
C
Plasket
Acting
Judge of Appeal
APPEARANCES
For
the appellants:
N A Cassim SC and S Freese
Instructed
by:
State Attorney, Pretoria
State Attorney,
Bloemfontein
For
the first respondent: P Kennedy SC and L
Zikalala (heads of argument drafted by N H Maenetje SC and
L
Zikalala)
Instructed
by:
Adams and Adams, Pretoria
Honey Attorneys,
Bloemfontein
[1]
Democratic Alliance v South African Broadcasting Corporation Ltd
& others
2015 (1) SA 551 (WCC).
[2]
South African Broadcasting Corporation SOC Ltd & others v
Democratic Alliance & others
2016 (2) SA 522
(SCA);
[2015]
ZASCA 156.
This case will be referred to below as
SABC (SCA)
.
[3]
Economic Freedom Fighters v Speaker, National Assembly &
others
2016 (3) SA 580 (CC); [2016] ZACC 11.
[4]
Oudekraal Estates (Pty) Ltd v City of Cape Town & others
2004
(6) SA 222
(SCA);
[2004] ZASCA 48
para 26.
[5]
Section 110.
[6]
Michael Bishop ‘Public Protector’ in Stuart Woolman and
Michael Bishop (eds)
Constitutional Law of South Africa
(2
ed) (Vol 2) at 24A-1 to 24A-2.
[7]
Lawrence Baxter
Administrative Law
at 233-235.
[8]
SABC (SCA)
(note 2) para 43.
[9]
Public Protector v Mail and Guardian Ltd & others
2011
(4) SA 420
(SCA);
[2011] ZASCA 108
para 6.
[10]
Harry Woolf, Jeffrey Jowell and Andrew Le Sueur
De Smith’s
Judicial Review
(6 ed) para 11-059. See too William Wade and
Christopher Forsyth
Administrative Law
(10 ed) at 29 who say:
‘Judicial review is thus a fundamental mechanism for keeping
public authorities within due bounds
and for upholding the rule of
law.’
[11]
Minister of Health & another NO v New Clicks South Africa
(Pty) Ltd & others (Treatment Action Campaign & another as
amici curiae)
2006 (2) SA 311
(CC);
[2005] ZACC 14
paras 95-97;
State Information Technology Agency SOC v Gijima Holdings (Pty)
Ltd
2017 (2) SA 63
(SCA);
[2016] ZASCA 143
paras 33-38.
[12]
Note 2.
[13]
Minister of Home Affairs & another v Public Protector &
another
2017 (2) SA 597
(GP); [2016] ZAGPPHC 921 para 47.
[14]
South African Reserve Bank v Public Protector & others
2017 (6) SA 198
(GP); [2017] ZAGPPHC 443.
[15]
Absa Bank Limited & others v Public Protector & others
[2018] ZAGPPHC 2.
[16]
SABC (SCA)
(note 2) para 24-25;
Independent Electoral
Commission v Langeberg Municipality
2001 (3) SA 925
(CC);
[2001]
ZACC 23
para 27 in which it was held that the Independent Electoral
Commission, also a Chapter 9 institution, was not an organ of state
‘within the national sphere of government’.
[17]
I express no view on whether rights may be adversely affected prior
to the completion of an investigation or whether an incomplete
investigation can have an external, legal effect.
[18]
As to which, see
Grey’s Marine Hout Bay (Pty) Ltd &
others v Minister of Public Works & others
2005 (6) SA 313
(SCA);
[2005] ZASCA 43
para 23.
[19]
As to which, see
Police and Prisons Civil Rights Union &
others v Minister of Correctional Services & others
2008 (3)
SA 91
(E);
[2006] ZAECHC 4
paras 52-53.
[20]
As to which see
Grey’s Marine Hout Bay
(note 18) para
22;
Sokhela & others v MEC for Agriculture and Environmental
Affairs & others
2010 (5) SA 574
(KZP); [2009] ZAKZPHC 30
paras 60-61.
[21]
Grey’s Marine Hout Bay
(note 18) para 24.
[22]
See Beinart
‘Administrative Law’
(1948) 11
THRHR
204
AT 212-213 who said of the functions given to state
functionaries: ‘To carry out these functions, the public
service has
been given powers of intervention, powers of compulsion,
powers of inspection, powers of decision, usually of a wide
discretionary
nature, which have a constant impact on the person,
property, labour and trade of the individual. What is more they are
supplemented
by powers to make rules and regulations in relation to
those powers, and often to conduct investigations and decide
disputes
. . ’. See too Marinus Wiechers
Administrative
Law
(2
ed) at 18; Wiechers ‘Administrative Law and the Benefactor
State’ 1993
Acta
Juridica
248 at 251.
[23]
Public Protector Act, s
5(2).
[24]
In cases involving undue delay and the exhaustion of internal
remedies, for instance, different procedural rules apply.
[25]
Cora Hoexter
Administrative Law in South Africa
(2 ed) at
118-119. At present, in respect of the principle of legality, not
every ground of review has been defined by the courts
with the
precision one finds in the PAJA. That said, however, broad grounds
going to the lawfulness, procedural fairness and
reasonableness of
official decisions have been recognised. See for instance
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
2000 (1) SA 1
(CC);
[1999] ZACC 11
para 148
; Pharmaceutical Manufacturers Association of SA &
others: in re ex parte President of the Republic of South Africa &
others
2000 (2) SA 674
(CC);
[2000] ZACC 1
paras 82-86. The only
difference in the grounds of review that I can discern at present is
that those exercising executive power
have been exempted from having
to act fairly (
Masethla v President of the Republic of South
Africa & another
2008 (1) SA 566
(CC);
[2007] ZACC 20
para
77) and disproportionality (as an aspect of unreasonableness) has
not yet been recognised as a ground of review, except
in a minority
judgment in the Constitutional Court (
Minister of Health &
another NO v New Clicks South Africa (Pty) Ltd & another
(Treatment Action Campaign & another
as amici curiae)
(note
11) paras 633-637).
[26]
Section 6(1)(
a
).
[27]
Section 6(2)(
b
).
[28]
Chirwa v Transnet Lt & others
2008 (4) SA 367
(CC);
[2007] ZACC 23
;
Gcaba v Minister of Safety and Security &
others
2010 (1) SA 238 (CC); [2009] ZACC 26.
[29]
Emphasis added.
[30]
Section 6(4)(
a
).
[31]
Section 6(4)(
b
).
[32]
Section 6(5).
[33]
Lawrence Baxter
Administrative Law
at 738-739;
Bangtoo
Bros. & others v National Transport Commission & others
1973 (4) SA 667
(N) at 676F-677A..
[34]
Pepcor Retirement Fund & another v Financial Services Board &
another
2003 (6) 38 (SCA);
[2003] ZASCA 56
paras 47-49;
Dumani
v Nair & another
2013 (2) SA 274
(SCA);
[2012] ZASCA 196
para 30.
[35]
De Freitas v Somerset West Municipality
1997 (3) SA 1080
(C)
at 1084E-H.