1 | P a g e
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO. 82779-2019
MARENZA CIVILS CC 1ST APPLICANT
BEX TRADING AND LABOUR SOLUTIONS
t/a BEX CONSTRUCTION 2ND APPLICANT
BATHLOKI PROJECTS CC 3RD APPLICANT
KEMOA CIVILS CC 4TH APPLICANT
TUMILID TRADING ENTERPRISE 5TH APPLICANT
MALAPANE PROPERTY SERVICES AND DEVELOPMENT CC 6TH APPLICANT
SELEMELA GENERAL DISTRIBUTORS SUPPLY CC 7TH APPLICANT
MKMG TRADING ENTERPRISE CC 8TH APPLICANT
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE SIGNATURE
27/08/2026 N V KHUMALO J
2 | P a g e
GEREMANE BUILDING CONSTRUCTION 9TH APPLICANT
MIRACLE FITTING GLASS & PROJECTS CC 10TH APPLICANT
And
THE PUBLIC PROTECTOR 1ST RESPONDENT
MINISTER OF PUBLIC WORKS AND INFRASTRUCTURE 2ND RESPONDENT
MEMBER OF THE EXECUTIVE COUNCIL
FOR THE NORTH WEST, DEPT OF PUBLIC WORKS,
ROADS & TRANSPORT 3RD RESPONDENT
THE REMAINING COMPLAINANTS 4TH TO 47TH RESPONDENT
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date and time of hand-down is deemed to be 27
August 2026.
The remedial action of the Public Protector can be challenged
The Public Protector’s remedial action should be appropriate, effective and address
the complaint in a meaningful way. The term “appropriate remedial action” is as
envisaged in s 182 (1) (c) of the Constitution1 defined in Economic Freedom Fighters
v The Speakers of the National Assembly 2016 (3) SA 580 CC.2 Ultimately the Public
Protector’s role is to observe the constitutional values necessary to ensure a
responsive remedial action, which in the true sense, addresses the complaint.
1 The The Constitution of the Republic of South Africa, 1996.
2 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 CC (31 March 2016)
3 | P a g e
The Public Protector ’s s 8 (4) (1) conciliated and mediated remedial action agreed
upon between the disputing parties and the PP in a settlement agreement recorded
and endorsed by the P ublic Protector to constitute the PP’s findings and remedial
actions in terms of s 182 (1) is binding to the parties and the Public Protector unless
set aside by agreement or court order.
___________________________________________________________________
JUDGMENT
N V KHUMALO J
Introduction
[1] This is a review application in terms of Rule 53 of the Uniform Rules of Court
instituted by the Applicants against the Public Protector (PP), the 1st Respondent
seeking a relief in the following order:
1.1. Reviewing and setting aside the decision of the Public Protector to
impose the remedial action on paragraph 7.3.3 of her report dated 6
May 2019;
1.2. Remitting the matter to the Public Protector to take a fresh decision
in respect of the appropriate remedial action to be imposed in order
to compensate the Applicants for the prejudice they have suffered.
1.3. Directing the Public Protector that when taking the fresh decision in
respect of the appropriate remedial action as above, may only
impose a remedial action in respect of the prejudice suffered by the
Applicants that accords with clause 2.4 of the settlement agreement
concluded on 23 July 2018.
1.4. Directing any Respondents who opposes the relief sought herein to
pay the costs of this Application on a joint and several basis, the one
paying the others to be absolved.
4 | P a g e
Factual Background
[2] The Applicants are contractors in the construction industry and part of the 67
contractors who participated in a learnership programme (learner contractors) called
the Vukuphile Learnership Programme (“the Vukuphile”) referred to by the PP in her
report as the Contractor Development Programme. Vukuphile was offered to learner
contactors as a joint initiative by the Department of Public Works , Roads and
Infrastructure, North -West, (“the D epartment”), whose Minister in the Ex ecutive
Council is in his capacity as the administrative head of the Department cited as the 3rd
Respondent and the Public Works and Infrastructure Ministry citing its political head,
as the 2nd Respondent.
[3] The Vukuphile programme offered the learner contractors academic instruction
and practical training on construction. The practical training was to be completed over
the course of a three (3) year programme . Each learner contractor was offered an
educational training to a fully-fledged contractor and a contract per calendar year. They
individually concluded their contracts with the Department during 2013, in terms of
which the y were each awarded a 12-month contract to supervise, monitor and
transport expanded public works programme (EPWP) beneficiaries.
[4] The Department appointed Aurecon as the project manager to provide
consultancy services and training to the learner contractors. Six (6) months after the
Vukuphile commenced, a fall out between Aurecon and the Department led to an
unresolved impasse and the Vukuphile halted. The programme was later cancelled on
14 November 2014 . The cancellation was premature, as a result regarded to be
improper.
[5] The Applicants allege that as learner contractors they had costs that they
expended to start the construction project that was allocated to them and were also
owed various amounts by the Department. The Department as a result promised to
owed various amounts by the Department. The Department as a result promised to
compensate the learner contractors f or damages and the prejudice they may have
suffered due to the cancellation and that those damages plus any related costs
incurred would be compensated separately.
5 | P a g e
[6] On failure by the Department to act as promised, 64 of the learner contractors
lodged a complaint with the PP in July 2016 . On 23 July 20 18, following the PP’s
determination in terms of s 7 (1) (b) (i)3 of the Public Protector Act 23 of 1994 (PPA) to
resolve the complaint through mediation and reconciliation in accordance with s 6 (4)
(b) (i) 4 of the PPA , a settlement agreement endorsed by the PP was concluded
between the Department and the Applicants being part of the learner contractors that
lodged the complaint. In terms of the settlement agreement the Vukuphile programme
was to be resuscitated. Each of the learner contractors was to be assigned a project
by the Administrator after being assiste d with statutory compliance such as the
Construction Industry Development Board (CIDB) grading and tax compliance as
compensation for loss of work. In relation to the additional prejudice suffered, if any, it
was decided that payments would be made to compensate the learner contractors, in
the form of ex gratia payments which shall be effected within 30 days of determination.
[7] In relation to the ex-gratia payments, the Applicants’ complaint was that they
suffered additional prejudice which ranged from inter alia, health, relationship
problems and a reduced ability to conduct business and provide for their families.
Quantification of the ex -gratia payments was a challenge . In terms of Clause 2.4 of
the settlement agreement , the Administrator -Provincial Government was going to
meet with each of the learner contractors and based on the evidence provided to him
by each contractor determine the extent of the prejudice suffered individually.
[8] In Clause 3 of the settlement agreement, both parties and the PP agreed that
the agreement constitutes the PP’s findings and remedial actions in terms of s 182 (1)5
3 Section 7 Investigation by Public Protector
(b)(i) The format and the procedure to be followed in conducting any investigation shall be
(b)(i) The format and the procedure to be followed in conducting any investigation shall be
determined by the Public Protector with due regard to the circumstances of each case.
4Section 6 (4) (b) (i) reads:
(4) The Public Protector shall, be competent:
(b) to endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by-
(i) mediation, conciliation or negotiation; or
4 Functions of Public Protector
182. (1) 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;
6 | P a g e
of the Constitution that are binding on the parties. Clause 4 provides that the
agreement did not affect the PP’s discretion to investigate the conduct of any person
responsible for the termination of the projects.
[9] On 6 May 2019 the PP issued a report, setting out the remedial actions as per
settlement agreement and the steps that was to be taken in the implementation
thereof. On paragraph 7.1 the PP reiterated that the settlement agreement constitutes
her findings and remedial actions and therefore legally binding on all the parties to the
settlement agreement. She, however, in paragraph 7.3.3 of her report stated, in
relation to the ex gratia compensation for the prejudice suffered, that “the appropriate
remedial action she is taking in accordance with the settlement agreement is that the
Administrator “is to assign projects, meant for ex-gratia consideration to contractors;
ie, payment of ex-gratia in the form of allocation of an additional project to a maximum
of R4 Million to all 64 contractors based on their CIDB grading , within 15 days of
completion of the currently allocated Vukuphile projects.” This was not in accordance
with but a deviation from the agreed remedial action in the settlement agreement
therefore contradictory.
[10] The Applicants contend that the mechanism specified in 7.3.3 of th e P P’s
report and the decision to impose it as a remedial action is unlawful as:
[10.1] It is contrary to the dictates of s 2176 of the Constitution of the Republic
of South Africa, 1996 (Constitution) therefore i nconsistent with the law as it
purports to direct the department to take a procurement decision in a way other
than to follow the procedure applicable in state procurement.
(b) to report on that conduct; and to
(c) take appropriate remedial action.
5 s 217 Procurement. (1) the Auditor-General must report to Parliament; and the province must be
given an opportunity to answer the allegations against it, and to state its case, before a committee. When an
organ of state in the national, provincial or local sphere of government, or any other institution identified in
national legislation, contracts for goods or services, it must do so in accordance with a system which is fair,
equitable, transparent, competitive and cost-effective.
7 | P a g e
[10.2] It is inconsistent with Clause 2.47 of the settlement agreement which the
parties and the PP agreed constituted the binding remedial action of the P P.
7.3.3 purports instead to amend/alter the remedial action in clause 2.4 when in
essence once the PP has exercised her right to impose the remedial action,
she cannot alter or amend such remedial action. To the extent that 7.3.3 intends
to amend the remedial action the PP had already made, it is unlawful.
[10.3] They furthermore contend that the remedial action in 7.3.3. is not an
appropriate remedial action within the meaning of s 182 (1) (c) as it is not a
sufficient and effective remedy to compensate the Applicants for the prejudice
they have suffered.
[10.4] The remedial measure in 7.3.3 w as imposed without warning or giving
them an opportunity to be heard prior to being imposed, even though procedural
rationality required th em to be heard and be allowed to make submissions
before a final decision is taken. The PP’s conduct therefore procedurally
irrational and unfair.
[11] They accordingly allege not to challenge the PP ‘s report for awarding them
compensation for the prejudice they suffered but the particular mechanism or the
manner in which the ex- gratia compensation is to be awarded is unlawful. The
Applicants contends that the PP’s impugned decision to impose the 7.3.3 remedial
action and the remedial action is therefore reviewable , either under PAJA or
alternatively can be accommodated under the principle of legality in that every excise
of power must comply with the law.
[12] In clarification, the Applicants point out that their challenge on the PP’s decision
in clause 7.3.3 is only as far a s it states that such compensation should be
consideration for future projects. It submits that it would be just and equitable for the
7 Clause 2.4 reads:
“2.4 the Administrator must, within 30 days of signing this agreement, mee/t with each Complainant
and determine the Quantum of the prejudices suffered, based on the evidence provided to him by the
Complainant. Payment of prejudices, if any, either in the form of ex gratia shall be effected within 30
days of the determination.”
8 | P a g e
matter to be referred back to the PP for a fresh session for consideration of the
appropriate remedial action to be imposed which must be consistent with clause 2.4.
of the settlement agreement.
[13] In its Supplementary Affidavit the Applicants highlighted that the record
confirms that the deviation f rom the settlement agreement and the PP’s remedial
action was without consultation or hearing the Applicants. As a result, justified that the
implementation of the ex- gratia compensation quantification process be started afresh
with the determination of new remedial action measures . They lambast the Molefe
report by Molefe from Molefe Attorneys who w as mandated on behalf of the
Administrator to overseer the quantification process.
[14] The Molefe report was submitted on 31 January 2019, after having supposedly
gone through the necessary process of hearing Applicants’ evidence on the prejudice
to determine the amounts for ex-gratia compensation. It concluded that nil was to be
paid to the Applicants on the basis that “Did not find any legal justification compelling
the Department to pay any of the claims submitted and for that reason ex- gratia is not
payable.” The reasons proffered briefly were that:
[14.1] The process created or invited a floodgate of claims;
[14.2] Serious allegations were made “in an attempt to claim money from the
Department”
[14.3] The PP must guard itself against being used as a vehicle to unjustifiably
enrich the Complainants by lodging claims that are over inflated, false and
misleading.
[15] The Molefe report was viewed by th e Applicants to be dismissive of the
legitimate harms and personal hardships allegedly endured by the learner contractors
due to the premature termination of the Vukuphile Programme . Whilst there was no
doubt and not in dispute that in all interactions they had suffered prejudice and entitled
to financial compensation for same. They talk about compensation by the Department
to financial compensation for same. They talk about compensation by the Department
giving them money, arguing that the PP herself said that “there is monies that they are
9 | P a g e
entitled to and Public Works (the Department ) is willing to settle as far as that is
concerned.”
[16] The Molefe report was said on the other hand not to understand that the ex-
gratia payment is made fr om a sense of moral obligation rather than a strict legal
entitlement. The method or the approach used to determine the prejudice suffered by
the contractors was not set out in the report . The report instead suggested that the
contractors were wholly responsible for the losses they suffered and there was no legal
justification for their claims or for holding the Department liable to compensate them.
The questions asked in the report were geared towards the project allocation and not
pertinent to determining the issue of the prejudice suffered , failing to appreciate the
distinction between the concept of “contractual damages” and “prejudice. The learner
contractors were not asked the right questions or given an opportunity to substantiate
their claims in full, rendering the process procedurally unfair and irrational. They allege
Molefe to have clearly misunderstood the nature of the exercise he was required to
conduct.
[17] The PP is alleged to have had no sight of the documents and evidence
submitted by the learner contractors or the contentions raised in relation thereto when
she prepared her report. As such she did not apply her mind to the ex gratia prejudice
issue, rendering the remedial action as reported irrational. Instead, it appears to them
that the PP by not adopting the report, recognised the flaws in the process of the
Molefe report in the determination of the quantum of the contractors ’ ex gratia
prejudice. She rather than start the process afresh, decided on an entirely new
remedial action instead of the one contemplated in the settlement agreement, directing
the awarding of contracts to cure the prejudice. However, failed to take into account
relevant considerations, (that is what was submitted) her decision reviewable.
relevant considerations, (that is what was submitted) her decision reviewable.
[18] They point out that there is no proof that the PP contacted any of the contractors
before her decision to impose the new remedial action, hence their argument that the
PP’s decision or action to impose the new relief in that context was procedurally unfair
and invalid, therefore reviewable.
-
10 | P a g e
[19] They reiterate the challenge of the remedial action’s recommendation of future
projects as compensation for the ex - gratia injury or loss and persist to advocate for
the remittal of the matter to the PP to take a fresh decision on the manner in which the
additional prejudice compensation is to be quantified. The decision or remedial action
should be consistent with paragraph 2.4 of the settlement agreement.
The Department’s Explanatory Affidavit
[20] The Department’s Administrator, being the one that was directed to establish
the deserving contractors and the quantum of the ex-gratia compensation to be paid
to the Applicants , deposed to what it characterised as the 3 rd Respondent’s
explanatory affidavit, with the purpose of clarifying its role in facilitating compliance
with the PP’s remedial action. The application for condonation for the late filing of the
Affidavit, which was on behalf of both the Department and the Minister was in the
interest of justice, granted.
[21] The Department a ccordingly noted that the Applicants were seeking an order
directing the PP to impose a fresh remedial action that accords with the provisions of
clause 2.4 for the monetary payment as the ex-gratia compensation. Further that In
clause 3 of the settlement agreement the parties agreed that the settlement agreement
constituted the findin gs of the PP as p er s 182 ( 1)8 of the Constitution and had a
binding effect on the parties. The parties also agreed that the agreement will not
prevent the PP from investigating the conduct of any person concerning the
termination of the programme . It alleges that the PP accordingly proceeded on that
basis to publish the report with the remedial action, part of which was indeed that the
Department should assign c ontracts to the value of R 4 000 000.00 ex gratia to the
deserving complainants in lieu of the prejudice that they may have suffered.
deserving complainants in lieu of the prejudice that they may have suffered.
[22] The Department’s viewpoint in that regard is that , even though the PP’s
remedial action directing the Department to award the contracts in lieu of ex gratia
compensation, a departure from the settlement agreement and also offends against
8 See footnote 4 .
11 | P a g e
the procurements prescripts applicable in the public sector, it would still not be just and
equitable if the remedial action of the PP is set aside or to have the matter determined
anew, since the department has already complied with 7.3.3. It should therefore be up
to the court to determine what is just and equitable in the peculiar circumstances of
this matter. Submitting also that the grounds can also be accommodated under the
principle of legality.
[23] According to the Department the cancellation of Vukuphile in June 2014 was
due to lack of funding. The recommendation published in the PP’s report were still in
line with the settlement agreement between the parties orchestrated by the PP. The
method of implementation and determination of the compensation to be paid for the
ex-gratia prejudice including timelines were agreed upon.
[24] The Department says it then began with the implementation. It kept on reporting
to the PP on the progress made. It confirmed to the PP when 60 of the initial 64 learner
contractors including the 1st Applicant were marked to be granted contracts, whilst the
remaining 4 were deregistered. Also, on finalisation of the Quantity Surveyor’s report
on determination of payments that were owing to the contractors at the time of
cancellation of the ir contracts, and the PP acknowledged receipt thereof . She
undertook to also allocate the contracts for the ex-gratia compensation based on the
various CIDB grading, following the PP’s remedial action at 7.3.3.
[25] Subsequent thereto, the Department provided update reports to, inter ala, the
PP in respect of a list of contractors that have been allocated work under the
resuscitated programme and a table of those that still had to be paid. The list included
amongst others the Applicants. It also provided a report consisting of a table containing
payment dates , a program and a table o n handover of the projects showing
payment dates , a program and a table o n handover of the projects showing
compliance with the remedial action that has been recommended and confirmation
that it has been able to allocate contracts to all the 60 eligible contractors.
[26] The Department contends that what the Applicants are asking for i s self-
defeating as they have already be nefited from the work/contracts allocated for the
purposes of the ex-gratia compensation in compliance with the impugned remedial
-
12 | P a g e
action recommended by the PP . The review Application has been overtaken by the
incidence of the Department complying with the impugned decision.
[27] Furthermore, the Dep artment concedes that it might be argued that the
Department should not have complied with the impugned remedial action in the light
of contentions raised by the Applicants. The court is implored to take into consideration
that some considerable time has passed and a lot has been done in consideration of
compliance. Undoing all that will not benefit anybody.
Applicants’ reply
[28] The Applicants in their reply deny that they have been awarded projects which
constitute compensation for the ex-gratia prejudice suffered due to cancellation of the
Vukuphile Programme. They also dispute that the Vukuphile Programme has been
properly resuscitated, saying that many of the aspects of the projects have not been
resuscitated or properly resuscitated.
[29] According to the Applicants the classroom component was not implemented
and the practical component not properly resuscitated . They allege to have filed a
Replying Affidavit because the Department’s explanatory Affidavit deserved a
response. However new evidence that seeks to cover incidence that go beyond the
explanation to the issues raised by the Department or their case as made in the
Founding Affidavit is to be curtailed. It is however not to be ignored that the Applicants’
Application was anchored on the preservation of the settlement agreement.
[30] The shortcomings of the programme’s practical component is alleged to be as
a result of failure to allocate mentors to guide and assist t he learner contractors
throughout the projects. The main aim being that the contractor must at the end or exit
of the programme have a higher CIBD rating, be competent and be able to
competitively tender for private and state tenders . For that reason some of the
Applicants are alleged to have not signed the new contracts.
Applicants are alleged to have not signed the new contracts.
[31] They however indicate that in this Application the Department’s failure to
properly resuscitate the programme is mentioned as a background and not
13 | P a g e
challenged. They instead have an issue with the Departments’ explanatory affidavit
since the assignment of the contracts does not satisfy the Department’s obligation to
provide compensation for the contractor’s ex gratia prejudice (as is required by the
settlement agreement ) which was made the official remedial action by the Public
Protector. The ex-gratia compensation was to be in addition to the ordinary damages
that the contractors would be entitled to as a result of the breach of contract. The
projects were therefore not and could not constitute compensation for the ex-gratia
prejudice, since:
[31.1] The projects require significant capital input and expenses, the value of
which is the amount at which the contract project is prized and not the amount
that the contractor is expected to profit from the project. The projects also took
significant time and resources, in many instances underpriced, with contractors
experiencing multiple delays, disruptions and other obstacles. All that drove the
prices up resulting in contractors in some instances breaking even and others
suffering a significant loss on the projects and additional costs resulting in
indebtedness. The additional costs were explained to the Department on 20
May 2022. They allege to have also contributed a significant amount to the
projects whilst they received no value in return or instead suffered losses. They
argue therefore that the award of the construction projects cannot constitute
compensation for the ex-gratia prejudice...
[32] In illustration of the losses suffered and costs incurred on contracts alleged to
have been granted for ex gratia compensation purposes , they refer to the school
projects granted to the 2nd Applicant beset by delays and ballooning costs. One is the
projects granted to the 2nd Applicant beset by delays and ballooning costs. One is the
Pelonomi project scheduled for 4 months but still to date not completed, after 4 years,
due to absence of a geological assessment when the foundation for the ablution was
done. Large rocks and boulders found below the surface and a water table hit that
increased t he contractor’s costs and that of labour. The 2 nd is the Kediemetsi one
completed after 20 months. No mentor was allocated. The challenges were
documented in minutes of meeting held by the 2 nd Applicant and the Department on
September 2022.
14 | P a g e
[33] The 2nd Applicant was also in March 2022 awarded the rehabilitation of the road
project worth R17 Million granted to and scheduled for 12 months. It was cancelled in
March 2023 because the Auditor General found that the contract constituted irregular
expenditure. At termination it was 90% complete and R16 Million had been paid to the
2nd Applicant. The 2nd Applicant suffered significant losses due to the delay in
completion caused by the fact that the design of the end point had to be changed three
times. The consultant involved was not involved in the designing of the bridge and
hired at a higher rate , declining those they suggested at lower rate. The costs
increased when the contractors also engaged their own consultants, who then
instructed an engineer to do a third design which held back the project as it took six
months for the new design to be produced, contributing to the losses and indebtedness
incurred.
[34] With all other mishaps with the Bill of Quan tities delaying the project s and
increasing the costs. The Department’s chosen consultant seemed to be the overall
overseer of all the Vukuphile projects. The 2 nd Applicant is said to have ultimately
suffered a loss of R5 529 928 Million Rands, a claim the Department is alleged to have
refused to settle.
[35] They point out f urther delays due to a community unrest and interference by
the business forum caused by the failure of the Department to appoint a CLO or a
steering committee , an Occupational Health and Safety Consultant and a Social
Facilitator. There was also a need for additional local Security. The amendment of the
Bill of Quantities which initially only covered 6 months when the contracts were for 1
year.
[36] The Appellants argue that in the light of the loss suffered and the costs incurred
in these projects, the contracts granted do not constitute the ex- gratia compensation.
Instead, the challenges as indicated on behalf of the 2nd Applicant is that there was no
Instead, the challenges as indicated on behalf of the 2nd Applicant is that there was no
tender or contract data or contract price adjustment fettered in and no contingencies
in the Bill of Quantities. These challenges are said to have been communicated to the
Department in June and September 2021 . The additional costs incurred and t o be
incurred were communicated in May 2022.
-
15 | P a g e
[37] As far as the 1st Applicant is concerned it is alleged that he did not make any
profit from the two contracts that were allocated in May 2019 and July 2020 to the
combined value of R2 769 155.00.86. He had to use his personal savings of R400 000
as he was advised by the Administrator not to exceed the contract value otherwise he
will not be awarded the contract as a learner contractor. The advise led to a loss. He
had no mentor to assist him with the pricing and guidance on site even though he was
awarded a project he had no experience on and of no relevance to the type of projects
the 1st Applicant was supposed to be allocated within the learnership , that is the
construction of roads . The 1st Applicant was as a result unable to upgrade his CIBD
grading. The contracts as a result cannot be regarded as compensation for the ex-
gratia prejudice.
[38] They argue that the Department was aware when it granted the projects to the
contractors that it was in reference to the delay in the project, and to have been aware
from the date that the review was launched that the PP’s report was under challenge
on the two inconsistent sets of remedial action promulgated by the P P in respect of
compensation for the ex-gratia prejudice suffered by the Applicants. Therefore, it acted
knowingly and took the risk that the 7.3.3 remedial action would be set aside.
[39] The Applicants also argue contrariwise that in any event it is not clear if the
projects were a llocated by the Department pursuant to its purported resuscitation of
the Vukuphile programme (as the PP directed it to do ) or to paragraph 7.3.3 of the
PP’s report. They reckon (it appears) it was in pursuant to the resuscitation of the
Vukuphile programme as the PP directed, given that the value of the projects allocated
varied considerably and did not each amount to R4 Million Rand. The allocations were
also very skewe red, arbitrary and biased to specific learner contractors which
also very skewe red, arbitrary and biased to specific learner contractors which
compromised or completely undermined or defeated the developmental objective of
the programme and caused damages and prejudices suffered by the contractors.
[40] The Applicants also agree with the Department in so far as what is stated is
consistent with what is in the settlement agreement and the PP’s report on the work in
which the participating contractor was accepted to the programme . They however
contend that the allocation of work was not consummate with what the learner
contractors signed for and their geographical location. They for example indicate that
-
16 | P a g e
the nature of work allocated to the 1 st Applicant was cutting of grass , whereas he
signed for civil engineering work. The work did not have the effect of contractor
development, growth and would not have translated into an increase in the CIBD
grading level of the 1 st Applicant. All this time t he 1st Applicant was told that the
allocation was temporary and allocation of proper projects would be in due course and
it never happened. The management plan for the Vukuphile learnership programme
was said to be lacking.
[41] They continue to argue that the resuscitation of the programme was not done
in accordance with the aims, objectives and guidelines of the programme. There was
no theoretical training , financial support that was provided even though the
management plan for Vukuphile provides that the Department concl uded an
agreement with the financial institution to provide learner contractors with access to
credit and financial services to enable the purchase of hand tools, vehicles ,
construction equipment needed to carry out the wor k and to have access to the
necessary working capital. Late payments by the Provincial Department resulted in
employees not being paid and having no money for transport to get to the site causing
slow progress and delay in the finalisation of the projects.
[42] The reappointment letters were issued to the contractors only in 2022, three
years after the PP’s report, signed by some and not all of the learner contractors.
Those who have not signed continue to suffer further prejudice as they are being
allocated smaller projects to the value of R1 166 836.00, below their CIDB rating. The
Department has also lately resolved not to further allocate any contracts to those who
have instituted legal proceedings aimed at setting aside the settlement agreement as
it is confirmed in paragraph 33 in a letter dated 13 February 2020.
[43] They further complain about favouritism in the allocation of projects , a few
[43] They further complain about favouritism in the allocation of projects , a few
contractors getting between R47 Million and R139 Million and the rest who have been
allocated only one project each ranging from only R368 000 to R 10.2 Million, which
cannot c onstitute ex gratia compensation as they have in many instances left the
contractors financially worse off. They deny that by the completion of a R10 Million
projects a contractor has benefitted, broken even or profited to that extent or at all, but
17 | P a g e
indicate the amount at which the project is priced to exclude the costly resources
required to complete the project.
[44] They deny that a cons ultative meeting was held with all the contractors
between 10-12 February 2018. They allege that the notice for the meeting was sent
by sms from an unknown number and as they could not identify the sender only a few
attended, approximately 12 of the 60. Whilst the Administrator ignored multiple emails
sent to him by the learner contractors requesting a meeting. They deny the statement
that all the 29 contractors by 4 February 2019 were furnished with appointment letters.
[45] In conclusion the Applicants dispute that the Department ought to have
complied with the impugned 7.3.3, remedial action in light of the numerous challenges
that have been brought to light in the allocation of the contract projects in resuscitation
of the programme.
[46] They as a result persist to seek an order to review and set aside the impugned
decision and the 7.3.3 remedial action, either under PAJA or alternatively the common
law principle of legality and insists on the substitution of the settlement remedial action
initially recommended.
Issues to be determined
[47] The issues arising from, the various contestations raised by the parties are:
[47.1] Whether the PPs impugned decision on the remedial action reviewable
under PAJA and or the principle of legality;
[47.2] Whether the PP ’s decision to issue the remedial action in paragraph
7.3.3 of her report ultra vires her Constitutional and statutory powers therefore
invalid and reviewable? If reviewable;
[47.3] Whether compliance with the impugned decision notwithstanding
it being reviewable, a factor to be considered in deciding on the appropriate
18 | P a g e
order. (whether it would be just and equitable to set aside the remedial action
of the PP and decide on the matter or to have it determined anew by the PP?
[47.4] Whether in remitting the matter to the PP for a fresh decision a directory
order (to take a particular decision), appropriate.
Legal framework
Whether the PP’s remedial action an administrative decision reviewable under s 1 of
PAJA and or under the principle of legality;
[48] In Minister of Home Affairs v The Public Protector ,9 the PP’s remedial action
was confirmed to have been long-established not to constitute an administrative action
with the court holding that:
“The Public Protector’s office 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 func tion 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 common law principle
of legality applies to the review of the decisions in issue in this case.”
[49] The principle of legality per se symbolizes the notion of a public authority that
cannot exercise its power arbitrarily but within the limits of the law. So even if a n
action/decision of a public authority does not constitute an administrative action as
action/decision of a public authority does not constitute an administrative action as
9 (308/2017) [2018] ZASCA 15 (15 March 2018)
19 | P a g e
contemplated in s 33 of the Constitution, the constrains of the principle of legality
remain, and implicit in the Constitution that the authority must be exercised in good
faith and not to be misconstrued.10 Courts can therefore , even when formal
administrative law mechanisms do not apply , review actions of public authorities to
ensure compliance with legality, enforcing the fundamental principles of natural justice.
Furthermore e nsure that legislative power is exe rcised fairly and transparently and
individual rights are protected against unintended encroachment.
[50] In Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte
President of South Africa and Others11 the court held as per Chaskalson J that:
‘It is a requirement of the rule of law that the exercise of public power by the
executive and other functionaries should not be arbitrary . Decisions must be
rationally related to the purpose for which the power was given, otherwise they
are in effect arbitrary and inconsistent with this requirement. It follows that in
order to pass constitutional scrutiny the public power by the executive and other
functionaries must, at least, comply with this requirement’.
[51] The test applied in the principle of legality reviews is rationality, that is whether
the means applied to reach a decision are rationally related to the end (decision). The
means applied will include the process, evidence considered, regulation applicable
and the reasoning. Chaskalson J also confirmed that rationality can be regarded as
the minimum threshold requirement to the exercise of all public power by public
functionaries including members of the executive. 12 The exercise of all public power
must consequently comply with the Constitutional and legal standard of rationality.
Overview on the powers of the PP
[52] In terms of s 182(1) of the Constitution 13 the PP is empowered, as
[52] In terms of s 182(1) of the Constitution 13 the PP is empowered, as
regulated by national legislation to investigate any conduct in state affairs or
10 Law Society of South Africa v The President of RSA 2019 (3) A 30 (CC) at para 47 and 48.
11 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674 (CC) at para 85; 2000 (3) BCLR 241 (CC) (25 February 2000)
12 Supra Ibid at 86 and 90
1313
20 | P a g e
public administration in any sphere of government , that is alleged or suspected
to b e improper or to result in any impropriety or prejudice , to report on that
conduct and to take appropriate remedial action. The PP’s powers as prescribed
by the Constitution are set out and described in elaborate terms in sections 6 (4)
(a) (i) and (ii) of the PPA, which deals with the legal status or effect of the totality
of the Public Protector’s remedial powers.
[53] Section 6 (4) (a) (i) and (ii) of the PPA reads:
the Public Protector shall, be competent:
4(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; [Sub-para. (iii) substituted by s. 36
(1) of Act 12 of 2004.]
(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
(b) to endeavour, in his or her sole discretion, to resolve any dispute or rectify any act
or omission by
or omission by
(i) mediation, conciliation or negotiation;
(ii) advising, where necessary, any complainant regarding appropriate
remedies; or
(iii) any other means that may be expedient in the circumstances; and
(c) at a time prior to, during or after an investigation;
21 | P a g e
(i) if he or she is of the opinion that the facts disclose the commission of an
offence by any person, to bring the matter to the notice of the relevant
authority; and charged with prosecutions; or
(ii) if he or she deems it advisable, to refer any matter which has a bearing on
an investigation, to the appropriate public body or authority; and affected by it
or to make an appropriate recommendation regarding the redress of the
prejudice resulting therefrom or make any other appropriate recommendation
he or she deems expedient to the affected public body or authority
[54] The extent of the mandate of the PP as expressly outlined (summarised
concisely) in the Constitution14 and the PPA is appropriately and fairly delineated as
follows in Economic Freedom Fighters,15
“Complaints are lodged with the Public Protector to cure incidents of
impropriety, prejudice, unlawful enrichment or corruption in government
circles. This is done not only to observe the constitutional values and
principles necessary to ensure that the “ efficient, economic and
effective use of resources [is] promoted” ,[64] that accountability finds
expression, but also that high standards of professional ethics are
promoted and maintained. It was held that “t o achieve this requires a
difference-making and responsive remedial action. Since one cannot
really talk about remedial action unless a remedy in the true sense is
provided to address a complaint in a meaningful way.”
[55] It is of importance that the PP’s remedial action is responsive and address a
complaint in a meaningful way . This is achieved by making an appropriate
recommendation to the affected public body or authority , on the correction of
impropriety found or regarding the redress of the prejudice resultant therefrom or any
other appropriate recommendation the PP deems expedient, whilst still maintaining
other appropriate recommendation the PP deems expedient, whilst still maintaining
accountability and promoting the effective use of resources.
[56] An appropriate remedial action connotes a suitable, proper, fitting, and effective
remedy for whatever complaint and against whomsoever the Public Protector is called
upon to investigate. 16 However sensitive, embarrassing and far-reaching the
14 Section 195 (1) (b) of the Constitution
15 Supra at para 74
16 Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) at para 69
22 | P a g e
implications of her report and findings, she is constitutionally empowered to take action
that has that effect, if it is the best attempt at curing the root cause of the
complaint. Remedial action must therefore be suitable and effective , and remedial
measures still capable of enforcement would be fully complied with.17
[57] The extent of depth of the PP’s remedial powers and the potential intrusiveness
of her investigative powers are highlighted explicitly by the court in EFF v Speaker,18
more so, tha t her office was accordi ngly created to “strengthen constitutional
democracy in the Republic”. And that “one cannot really talk about a remedial action
unless it in the true sense is provided to address a complaint in a meaningful way or
any other means that may be expedient in the circumstances.”
[58] The remedial action must therefore be expedient in the circumstances, meaning
practical, measurable and beneficially address a complaint in a meaningful way. The
PP is required to be impartial, exercise her powers and perform her functions without
fear, favour or prejudice, independent of any influence. To realise this enormous and
crucial objective, the PP is accordingly in terms of the Constitution19 independent and
subject only to the Constitution and the law.
[59] Hence in EFF v Speaker the court further opined that:
“[49] I hasten to say that this would not ordinarily be required of an institution
whose powers or decisions are by constitutional design always supposed to
be ineffectual. Whether it is impartial or not would be irrelevant if the
implementation of the decisions it takes is at the mercy of those against
whom they are made.”
Whether the PP’s decision to issue the remedial action in paragraph 7.3.3 of her report
ultra vires her Constitutional and statutory powers therefore invalid and reviewable?
[60] As in terms of s 6 (4) (b) (1) of the applicable legislation , the PP facilitated
[60] As in terms of s 6 (4) (b) (1) of the applicable legislation , the PP facilitated
through conciliation and mediation a consensual remedial action to the Applicants ’
complaint. Of importance is that in terms of clause 3 of the settlement agreement, both
17 See Fose Supra
18 See footnote 1
19 Section 181 (1) (a) and (2) of the Constitution.
23 | P a g e
parties and the PP agreed that the agreement constitute the PP’s findings and
remedial actions in terms of s 182 (1) of the Constitution and that it is binding on the
parties. Both parties and the PP do not dispute the legal effect thereof that it remained
binding.
[61] The PP decision to amend or deviate in his report from the settled remedial
action was in essence ultra vires her powers, which is a Constitutional impasse. Once
the PP has decided on the remedial action, the Applicants argue that she became
functus officio. She indeed could not unilaterally and arbitrarily withdraw, revoke or
revisit the decision, due to its binding nature , more so that it was agreed upon by all
parties in settlement. The Department acquiesced to that contention.
[62] It is clarified in EFF that this is so, because our constitutional order hinges on
the rule of law. A decision grounded on the Constitution or law may not be disregarded
without recourse to a court of law. To do otherwise would “amount to a licence to self-
help”. It is further set out in EFF20 with reference to MEC for Health, Eastern Cape
and Another v Kirland Investments (Pty) Ltd that:
“Whether the Public Protector’s decisions amount to administrative
action or not, the disregard for remedial action by those adversely
affected by it, amounts to taking the law into their own hands and is
illegal. No binding and constitutionally or statutorily sourced decision
may be disregarded willy-nilly. It has legal consequences and must be
complied with or acted upon. To achieve the opposite outcome
lawfully, an order of court would have to be obtained. This was aptly
summed up by Cameron J in Kirland21as follows:
The fundamental notion – that official conduct that is vulnerable to
challenge may have legal consequences and may not be ignored until
properly set aside – springs deeply from the rule of law. The courts
alone, and not public officials, are the arbiters of legality. As Khampepe
alone, and not public officials, are the arbiters of legality. As Khampepe
J stated in Welkom. . . ‘(t)he rule of law obliges an organ of state to use
20 EFF v Speaker of the National Assembly & Others Supra at para 74
21 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd [2014] ZACC 6 ; 2014 (3) SA
481 (CC); 2014 (5) BCLR 547 (CC) (Kirland)
24 | P a g e
the correct legal process.’ For a public official to ignore irregular
administrative action on the basis that it is a nullity amounts to self -
help. And it invites a vortex of uncertainty, unpredictability and
irrationality.”
[63] The fact that the process for establishing and quantifying the ex -gratia
compensation for the prejudice suffered as per the settlement agreement was
unsuccessful, did not mean that the PP on her own or together with the Department
could arbitrarily decide to impose a remedial action , revoking or deviating from the
binding remedial action. The remedial action remains binding to all the affected parties,
even though they might now hold a contrary view.
[64] In terms of Oudekraal Estate (Pty) Ltd v City of Cape Town 22 administrative
decisions remain legally effective until properly set aside , even though in casu the
context is different as we are not dealing with an administrative decision, the premise
however is the same as far as the exercise of public power is concerned. The PP could
not disregard the legally binding effect of his remedial action in the settlement
agreement, which was final. The remedial action could not be revoked, revisited,
withdrawn or substituted except by consensus of all the parties concerned , failing
which by order of court, not even by the PP who also had to do it by court order.23
[65] The PP had in fact also in her report confirmed in paragraph 5.3.9 that clause
2.4 of the settlement agreement constitutes the PP’s findings and a conciliated and
mediated remedial action that is binding. The remedial action was final so as to be
binding, which finality can only be on publication . In the report issued by the PP on 6
May 2019, in as much as she had confirmed that clause 2.4 remedial action is binding,
she also arbitrarily purported to impose the 7.3.3 remedial action and to publicise it in
terms of s 8 (2A) (a) of the PPA. It was mis leading as the s 6 (4) (b) (1) facilitated
terms of s 8 (2A) (a) of the PPA. It was mis leading as the s 6 (4) (b) (1) facilitated
settlement agreement that outlined and confirmed her findings was already presented
to and agreed upon by the parties on 23 July 2018. It culminated into a decision and
publication thereof, therefore final
22 (41/2003) [2004] ZASCA 48; [2004] 3 All SA 1 (SCA); 2004 (6) SA 22 (SCA) (28 May 2004)
23 EFF v National Speaker of the Assembly [2016] ZACC 11; 2016 (3) SA 580 CC at par 75
25 | P a g e
[66] In terms of s 8 24 of the PPA, for publication, the PP shall make her findings of
an investigation available to the complainant and to any person implicated thereby
when she deems it fit but as soon as possible, including when in a manner she deems
fit makes known to any person her findings, point of view or recommendation in respect
of a matter she has investigated. The remedial action in casu was published when the
PP’s facilitated and recorded settlement agreement was presented and agreed to by
the disputing parties, upon which it became final and binding. The PP in the settlement
agreement did not only determine the remedy but also directed its implementation and
confirmed its binding effect25 in line with s 182 (1) (c).
[67] . Her subsequent decision to include paragraph 7.3.3 in her s 182 (1) (b) report,
that tended to revoke the binding remedial action as per settlement agreement,
substituting it with the ex -gratia project contracts was as a result irregular,
inappropriate, ultra vires her powers , and of no force or effect, her action invalid as
was argued by the Applicant The remedial action recommended in the settlement
agreement remains binding and could not be altered or substituted without the consent
of the parties or order of court. The preservation in the settlement agreement of the
PP’s discretion to further investigate the conduct of any person responsible for the
termination of the Vukuphile does not validate the decision the PP later purported to
make in paragraph 7.3.3 without such investigation.
[68] The PP’s power to make findings and recommendations as per s 182 (1) of the
Constitution and s 6 of PPA is limited to matters she has investigated. When all the
24 Section 8 reads:
Publication of findings
(1) The Public Protector may, subject to the provisions of subsection (3), in the manner he or she deems
fit, make known to any person any finding, point of view or recommendation in respect of a matter
investigated by him or her.
investigated by him or her.
(2) …
(3) The findings of an investigation by the Public Protector shall, when he or she deems it fit but as soon
as possible, be made available to the complainant and to any person implicated thereby.
25 SABC v DA note 46 above at para 52.
26 | P a g e
essential requirements for the proper exercise of her power are met, if no consensus
is reached on her findings regarding the changes she found necessary to be effected,
she had to get the court’s consent to alter her recommendations. Absent the court
order the settled remedial action remains binding. The arbitrary imposition of the
amended remedial action supposedly to provide an alternative remedy to resolve the
Applicants’ complaint on that basis, is contrary to the basic tenets of the law from which
the PP derives her powers. Her decision therefore is to be set aside.
[69] In addition, the contractors were not consulted or afforded a hearing, neither
was there a consideration of the ir evidence or documents or at least an investigation
on their perspective on the viability of the substituted mode of compensation. The PP
therefore failed to adher e to her Constitutional mandate and statutory obligations to
investigate and make proper findings prior to making the recommended remedial
action. The decision was arbitrary and tainted by procedural irregularities. In the
meanwhile there was a proliferate of complains about the Department’s failure to co-
ordinate meetings that were requested by the Applicants and in the implementation of
contract work projects.
[70] Furthermore, the method specified in 7.3.3 as the recommended remedial
action for the ex -gratia compensation, that “an additional contractual project of equal
value of R4 Million be assigned to each of the 64 learner contractors that were involved
in the program,” practically circumvents the process of establishing and verifying the
prejudice suffered by each contractor, if any and the extent thereof. It is obvious that
the contractors could not have all suffered prejudice and of equal proportion. As
indicated by the Applicants, it is not discernible how the PP arrived at the decision to
recommend the substitution of contract projects for the ex -gratia compensation and
recommend the substitution of contract projects for the ex -gratia compensation and
the value thereof without the benefit of evidence by all the parties. It means the extent
of the State Department’s liability is thumb sucked. The decision was clearly
insufficiently informed, devoid of any sense or rationality.
[71] Moreover, th e parties also agreed that the imposed mode of the ex -gratia
compensation in 7.3.3 is improper as it affronts the applicable legislation on
procurement as the PP purports to direct the Department to effect procurement in a
27 | P a g e
way that is contrary to s 217 26 of the Constitution, the Public Finance Management
Act27 and the Preferential Procurement Policy Framework Act, (Act 5 of 2000 ) as
repealed by the Public Procurement Act .28 She likewise acted in violation of her
mandate in terms of the PPA to promote accountability , ensure effective use of state
resources and of her constitutional obligations to uphold the law.
[72] The decision therefore lacks rationality. It not only being procedurally fatally
flawed and unlawful, but also Constitutionally invalid and to be set aside.
Whether compliance with the reviewable decision by a party or part ies, a factor to be
considered in determining a proper order, including whether or not it would be just and
equitable to set aside the invalid decision.
[73] It is the Department ’s argument that the review application overtaken by the
events of compliance with the impugned decision . The Applicants have already
benefitted, in that , on receipt of the report, the Department commenced with the
allocation of the work projects for the ex- gratia compensation of the Applicants’
prejudice in compliance with the impugned remedial action. In addition, a considerable
time has passed therefore undoing all that will be of no benefit to no one but self-
defeating to the Applicants.
[74] The Department’s viewpoint in that regard is that, even though the PP’s
remedial action directing the Department to award contracts in lieu of the ex gratia
compensation to the deserving complainant contractors for prejudices they may have
suffered, is a departure from the settlement agreement and offends against the
procurements prescripts applicable in the public sector, it would not be just and
equitable to set it aside or to have the matter determined anew. It placed on record
that since the department has already complied, as a result, it should be up to the
that since the department has already complied, as a result, it should be up to the
26 Procurement s 217. (1) the Auditor-General must report to Parliament; and the province must be given an
opportunity to answer the allegations against it, and to state its case, before a committee. When an organ of
state in the national, provincial or local sphere of government, or any other institution identified in national
legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable,
transparent, competitive and cost-effective.
27 1 of 1991
28 Act 28 of 2024
28 | P a g e
court to determine what is just and equitable in the peculiar circumstances of this
matter.
[75] In essence the Department seeks the court to condone the unlawful and
arbitrary decision of the PP, notwithstanding conceding to the illegality of the decision
being contrary to the Constitution and imposed procurement prescripts as a just and
equitable order. More so that there was already in existence a binding remedial action.
[76] The PP’s decision is invalid and therefore of no force or effect. The court cannot
perpetuate judicial delinquency by condoning and sanctioning illegal/invalid decisions.
In such instance w hat would be just and equitable is not to validate an invalid act.
Compliance therewith could not render it legal, The decision was unlawful. Moreover,
it was made whilst there was an existing and binding remedial action on the ex gratia
compensation.
[77] It further should be clear and emphasised that the power of the court to grant a
just and equitable remedy may not be exercised to withhold the declaration of
invalidity. It cannot be invoked as justification for declaring invalid an administrative
action that is inconsistent with the Constitution and PAJA, in this instance the principle
of legality. This is so because section 172(1) of the Constitution compels every court
to declare invalid any conduct that is inconsistent with the Constitution. As mentioned
earlier, the performance of this function is not discretionary. But the granting of a just
and equitable order is discretionary.29
[78] In Kirland it was further enunciated that:
“Just like any discretionary power, this power too must be exercised
judicially. This means that there must be circumstances that convince a court
to exercise it one way or the other. It is apparent from Bengwenyama
Minerals that prejudice is one of the factors which may influence a court to grant
a just and equitable order in addition to declaring an administrative decision
invalid”.
a just and equitable order in addition to declaring an administrative decision
invalid”.
29 Kirland Supra at para 54
29 | P a g e
[79] In Bengwenyama Minerals referred to in Kirland the following was also held
that:
“It would be conducive to clarity, when making the choice of a just and equitable
remedy in terms of PAJA, to emphasise the fundamental constitutional
importance of the principle of legality, which requires invalid administrative
action to be declared unlawful. This would make it clear that the discretionary
choice of a further just and equitable remedy follows upon that fundamental
finding. The discretionary choice may not precede the finding of invalidity. The
discipline of this approach will enable cou rts to consider whether relief which
does not give full effect to the finding of invalidity, is justified in the particular
circumstances of the case before it. Normally this would arise in the context of
third parties having altered their position on the basis that the administrative
action was valid and would suffer prejudice if the administrative action is set
aside, but even then the ‘desirability of certainty’ needs to be justified against
the fundamental importance of the principle of legality.”
[80] Even though the Department had indicated that the cancellation of Vukuphile
in June 2014 was due to lack of funding, it nevertheless agreed in the settlement
agreement as facilitated by the PP to the method of implementation and establishing
the ex- gratia prejudice suffered, the extent of compensation to be paid to each
contractor plus timelines. The Department argues that it was bound to abide by the
latter decision as it is required by law until it has been set aside by the court . It as a
result undertook to allocate the contracts for the ex-gratia compensation based on the
various CIDB grading, in line with the PP’s remedial action at 7.3.3.
[81] The Applicants have illustrated how the contractors involved are finding it
difficult to fulfil their contractor project duties as a result of a variety of issues involved.
Moreover, the lack of cashflow , facilities and equipment required to realise the
intended compensation for the resuscitated contracts. Therefore, the allocation of
further contracts when some contractors are still struggling with proper grading plus
the stated systematic challenges is alleged to have not effectively compensated the
prejudice suffered but created further problems. There are also allegation of skewed
30 | P a g e
allocations with some projects being way over or way lower than the R4 Million
threshold imposed by the PP.
[82] Taking into consideration that 7.3.3 remedial action was n ever investigated as
a viable option and also due to its invalidity and illegality and the manner in which it
was implemented , it cannot be considered to be a just , equitable and sustainable
solution to retain as it stands even if part allocation is alleged to have taken place. An
incident of irregular expenditure involving the ex-gratia projects has already arisen.
[83] Basically it is also not reconcilable with the Applicants unique situation since
prejudice suffered, if any, and its extent still has to be identified and proven first prior
to any ex-gratia compensation considered. This is another way to make sure that
public funds are not misused or wasted as a result of unintended enrichment.
[84] The PPA makes it clear that while the functions of the Public Protector include
those that are ordinarily associated with an ombudsman they also go much beyond
that. The Public Protector is not a passive adjudicator between citizens and the state,
relying upon evidence that is placed before him or her before acting. His or her
mandate is an investigatory one, requiring pro-action in appropriate circumstances. 30
[85] In my view it is of no consequence that an undert aking was made to comply
with a remedial action conceded to have been made improperly and contrary to the
dictates of the principle of legali ty. Moreover, the alleged allocations of ex gratia
contracts were made post th is Application challenging the validity of the related
decision. It would not be in the interest of justice to validate the impugned decision
and such compliance without proper investigation. More so as the equity and
sustainability thereof is questionable. It cannot be that each of the contractors had
suffered the ex- gratia prejudice and of equal proportion. If the intention was to alter
suffered the ex- gratia prejudice and of equal proportion. If the intention was to alter
the remedial action as per settlement agreement, then a vigorous, separate
investigation with proper findings and recommendation could not be circumvented.
Seeing all that has occurred, remission of the matter back to the PP is unpreventable.
30 The Public Protector v Mail and Guardian Ltd & Others SA 2011 (4) SA 420 (SCA)) [2011] ZASCA 108; 422/10
(1 June 2011) at para 9
31 | P a g e
[86] The Department has mentioned the question of delay to be considered. It can
be ameliorated by managing timelines of the investigation and consideration of
outcomes. Besides delay, no other prejudice has been mentioned.
Whether a directory order to the PP would be appropriate
[87] The decision to be made involves not only the consideration of fairness to all
implicated parties but an investigation that requires assessment and evaluation of all
evidence and circumstances, accounting for all relevant facts and surrounding
circumstances for the PP to be a in a good position to exercise her discretion to make
a proper recommendation. She needs to have all the pertinent information before her
to make the appropriate remedial action . A directory order would therefore not be
appropriate.
[88] A directory order prescriptive on the recommendation to be made risks
prejudicing the PP’’s decision making process and undermining its integrity, especially
when the outcomes of an investigation and probable findings cannot be predicted. The
court might be considered to have exceeded its jurisdiction.
[89] In Trencon Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and Another, the court in response to a proposition of a directory
order stated that:
A foregone conclusion cannot be circumscribed to the PP where in the exercise
of her discretion she is directed to only one outcome regarded as proper when
there are still other consideration to be made and it would merely be a waste
of time to order the [administrator] to reconsider the matter’. Indubitably, where
the PP has not adequately investigated the matter, it may be difficult for a court
should have reached a particular decision and that the decision is a foregone
conclusion.
32 | P a g e
Even where the administrator has applied its skills and expertise and a court
has the relevant information before it, the nature of the decision may dictate
that a court defer to the administrator”.31 (my emphasis)
[90] Ancillary orders directing the Public Protector to investigate afresh, and in doing
so to take certain matters into account, were, however, set aside in The Public
Protector v Mail and Guardian Ltd & Others SA32, the SCA implored that “ a court
should not make an order unless the order is clear as to what is required. The court
could not direct the Public Protector as to the manner in which any further investigation
should be made and for that reason it set aside those orders stating as follows:
“But I do not think that a court should make an order, thereby exposing
the litigant to the penalties for contempt if it is not obeyed, unless the
order is clear and unambiguous as to what is required. There was no
suggestion on behalf of the Public Protector that the investigation will not
be opened afresh and the views expressed by Adv Mushwana himself of
the enormity and importance of the matter give every reason to think that
that will indeed occur. It is not open to us to supplant the Public Protector
by directing with precision what is required for a proper investigation. That
will inevitably be dictated by the exigencies that might arise. In those
circumstances I do not think those orders should stand and the Public
Protector must be left to determine what is required in order to fulfil his or
her duty.”
Costs
[91] In litigation, the general principle for costs is that costs follow the event.
In that regard the losing party is to pay the costs of the winning party.
[92] It is also the basic principle that the award of costs is in the discretion of
the court and the successful party should, as a general rule, have his or her
costs.33 The Department and the National Ministry has not been successful in
costs.33 The Department and the National Ministry has not been successful in
31 2015 (5) SA 245 (CC) para 47-50. [2015] ZACC 22; 2015 (10) BCLR 1199 (CC) (26 June 2015)
32 at para 145
33 Ferreira v Levin NO and Others
their counter proposition to stay the decision of the PP notwithstanding conceding
its illegality and inappropriateness on the merits. It would therefore be just for
both to carry the costs.
It is therefore ordered that:
1. The remedial action in paragraph 7.3.3 of the Public Protector 's Report dated
09 May 2019 is reviewed and set aside;
2. The matter is remitted to the Public Protector who is directed to within 60 days
of receipt of notice of the grant of this order, to investigate, consider and decide
on a fresh decision in respect of the appropriate remedial action to be imposed
for the ex gratia compensation of the Applicants for the prejudice proven to have
been suffered which decision and method of implementat ion thereof is to be
communicated to the Applicants and the 2nd and 3rd Respondents within 30
days of it being taken.
3. The 2nd and 3rd Respondent to pay the costs of this Application on scale
B.
For the Applicants:
Instructed by:
33 I Page
E Webber
NV Khumalo
Judge of the High Court
Gauteng Division, Pretoria
loxton@counsel.co.za I pjd@counsel.co.za
VAN VELDEN DUFFY INC
weslevk@vvd.co .za
34 | P a g e
For 1st Respondent: N/A
Public Protector Office
For 2nd & 3rd Respondents: M MakotI
advgumbi@gmail.com /
kunene@counsel.co.za
Instructed by: MOLEFE ATTORNEYS
thapelo@lawyer.com