CONSTITUTION – Public Protector – Suspension
By President pending conclusion of section 194 process – Adverse credibility findings and prima facie evidence of incompetence – Justifications for precautionary suspension existed – Suspension also eliminates the risk of interference in the section 194 enquiry – Decision to suspend Protector was only possible rational outcome – Evidence not showing that President acted in a manner which exposed him to a situation involving the risk of a conflict between official responsibilities and private interests – Constitution, s 194(3)(a).
Facts: In 2022, the Section 194 Committee resolved to proceed with the consideration of the motion for the removal of the Public Protector and the Speaker wrote a letter to the President advising him of the latest developments. The President wrote a letter to the Protector informing her of the Speaker’s letter. He invited the Protector to provide him with reasons why he should not exercise his powers in terms of section 194(3)(a) of the Constitution and suspend her pending the finalisation of the enquiry of the Section 194 Committee. The Protector replied, informing the President of conflict of interest precluding him from personally suspending her, arising out of investigations by the Protector against him. The Committee resolved to continue its work so the Protector approached the High Court for relief.
Appeal: The full court declared invalid the decision of the President to suspend the Public Protector, finding that there was an objectively reasonable apprehension of bias which prevented the President from exercising his powers under section 194(3)(a) of the Constitution. Because of the Phala Phala investigation, there was a risk that, in suspending the Public Protector, the President acted in a manner which exposed him to a situation involving the risk of a conflict between his official responsibilities and private interests.
Discussion: Whether in suspending the Protector, the President acted in breach of section 96(2)(b) of the Constitution; whether the President’s decision to suspend the Public Protector was shown to have been biased, alternatively the Public Protector’s apprehension that the President would not bring an open mind in deciding whether to suspend her was reasonable; and if the appeal is successful, whether the Public Protector should pay costs in her personal capacity.
Findings: The President invoked the provisions of section 194(3)(a) in this matter and suspended the Public Protector pending the conclusion of the section 194 process. It does appear that the justifications for a precautionary suspension existed in this matter. This court has made gravely adverse credibility findings against the Protector. An independent panel found prima facie evidence of incompetence on her part based on a number of repeated instances. The suspension also eliminates the risk of interference in the section 194 enquiry. The cumulative effect of all these factors makes clear that a decision to suspend the Protector was, on the merits, the only possible rational outcome. The evidence does not show that the President acted in a manner which exposed him to a situation involving the risk of a conflict between his official responsibilities and private interests. The President stood to gain nothing from suspending the Public Protector.
Order: The appeals by the Democratic Alliance and the President are upheld. The orders of the full court are replaced with an order dismissing the prayers to declare invalid the decision to suspend the Protector.
MAYA DCJ (unanimous)
* See para  on the personal costs order for the Protector regarding the section 18 application for leave to appeal.
CIVIL PROCEDURE – Discovery – Relevance
Delictual claim against attorney for money transferred from trust account – Seeking proof of recipient’s details – Payment of funds by defendant to third party other than plaintiff not an issue in dispute – Pleadings need to be read as a whole – Identity of recipient is irrelevant – Documents sought are irrelevant to the issues in dispute and plaintiff is not entitled to them – Uniform Rule 35(7).
Facts: Mr Isaacs (the plaintiff) concluded an oral agreement with Mr Sharma to acquiring certain distribution rights from Photonic Global. To facilitate this transaction, the plaintiff elected to use the services of the attorney (the defendant) to administer the funds. He transferred R2 million into the defendant’s trust account, but the deal did not materialise. Plaintiff alleges that the defendant was negligent and breached his legal duty by transferring the money to Sharma without the plaintiff’s instruction. He recovered R1 million from Mr Sharma and so claims R1 million in delictual damages from the defendant with interest and costs.
Application: An opposed application in terms of Uniform Rule 35(7) seeking an order that the respondent complies with a Rule 35(3) notice to produce proof of the recipient’s details into which the defendant transferred the funds of R2 million.
Discussion: That as an aside, the court is not convinced that the documents sought by the plaintiff attract attorney-client privilege, as this privilege only extends to communication between the client and his legal advisor for the purposes of obtaining legal advice; whether the documents sought are relevant to the issues in dispute in the main action; that it is common cause between the parties that the defendant transferred the funds from his trust account to Mr Sharma; and that the payment of the funds by the defendant to a third party other than the plaintiff is not an issue in dispute.
Findings: The pleadings need to be read as a whole. The defendant admits transferring the funds to Mr Shwarma but denies requiring the plaintiff’s instruction to transfer the monies as the defendant contends that he was holding the money on Shwarma’s behalf, which was he alleges was in terms of the plaintiff’s representations made to the defendant. Counsel for the plaintiff could not answer how this document would advance the plaintiff’s case or damage the case for the defendant. The identity of the recipient of the money is irrelevant to this matter. The documents sought in Rule 35(3) are irrelevant to the issues in dispute, and consequently, the plaintiff is not entitled to them.
Order: The application is dismissed with costs.
ADMINISTRATIVE – Review – Reasons for decision
Classification of property as multi dwelling for sewer and sanitation purposes – In terms of section 74(1) of the Local Government: Municipal Systems Act 32 of 2000 – No reasons provided for administrator’s decision in terms of section 5 of PAJA – Remittal of decision for reconsideration – Promotion of Administrative Justice Act 3 of 2000.
Facts: San Ridge Heights consists of 42 buildings on a single erf and each of the 42 buildings is a multi-storey building with eight separate flats. The City and/or Johannesburg Water charge San Ridge for sewerage and sanitation services in terms of its tariff policy, which is adjusted annually. The City classified San Ridge Heights under the category “multi dwelling” which attracts a tariff of R416.47 per month per unit. San Ridge contends that its property should fall under the classification of “blocks of flats” and the tariff should be R250 per month per unit.
Appeal: The notice of appeal and a subsequent follow-up letter to the City and/or Johannesburg Water was simply ignored. San Ridge instituted review proceedings in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) alternatively on the grounds of legality. The High Court found in favour of San Ridge. The City and Johannesburg Water now appeal.
Discussion: The contentions by San Ridge that its ability to provide low cost rental-housing has been adversely affected and that the City and/or Johannesburg Water did not comply with section 5 of PAJA to the extent that it did not provide reasons for its decision to classify San Ridge Heights as a “multi dwelling”; that San Ridge’s review challenge is premised on the implementation of the City’s tariff policy and not the tariff policy itself; that San Ridge exhausted all internal remedies before launching the review application; and that the City and /or Johannesburg Water have simply ignored all attempts by San Ridge to obtain reasons for their decision.
Findings: The City and /or Johannesburg Water do not explain what factors they took into account when they classified San Ridge Heights as a ‘multi dwelling.’ Section 33(2) of the Constitution imposes a duty on public administrators to give written reasons to those whose rights have been adversely affected by administrative action. This constitutional obligation is given effect in PAJA. The failure to give reasons by the City and/or Johannesburg Water in this case is fatal and dispositive of the matter. The High Court substituted its decision but it did not have the rates valuations before it. The matter should be remitted to the decision-maker for reconsideration.
Order: The appeal is upheld to the limited extent that the High Court order is adjusted so that the matter is remitted to the City and Johannesburg Water to reconsider their classification.
CARELSE JA (NICHOLLS JA, MABINDLA-BOQWANA JA, WEINER and MOLEFE JA concurring)
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