Mbina-Mthembu v Public Protector
Jurisdiction | South Africa |
Judge | Plasket J and Nqumse AJ |
Judgment Date | 07 March 2019 |
Citation | 2019 (6) SA 534 (ECB) |
Docket Number | 208/2018 |
Hearing Date | 07 March 2019 |
Counsel | TM Ntsaluba SC (with SX Mapoma) for the applicant. S Rorke SC for the respondent. |
Court | Eastern Cape Division |
Plasket J (Nqumse AJ concurring):
[1] When the founding father of South Africa's democracy, Mr Nelson Rolihlahla Mandela, died on 5 December 2013 at the age of 94 years, hasty arrangements were made for his state funeral scheduled for 10 days H after his death. He was to be buried at his home in Qunu near Mthatha in the Eastern Cape Province. Planning for and the implementation of the planning of the funeral involved the national, provincial and local spheres of government. On the provincial level the Eastern Cape provincial government (the provincial government) was centrally involved, while on the local level the King Sabata Dalindyebo Local Municipality I (the KSD Municipality) and the OR Tambo District Municipality (the ORT Municipality) had roles to play. Little prior planning of any significance was undertaken, even though Mr Mandela had been ill for some time.
[2] In order to meet the exigencies of the situation, the provincial J government decided to make available R300 million to fund the funeral.
Plasket J (Nqumse AJ concurring)
This A amount had been allocated to the Eastern Cape Development Corporation (the ECDC) [1] and ring-fenced for the ECDC to use for social-infrastructure development. The ECDC was given the function of paymaster and by the time the funeral had been concluded and suppliers of goods and services had been paid, it had disbursed R35 963 889. The provincial government's thinking when it embarked on this arrangement B was that it would reimburse the ECDC in due course.
[3] A number of complaints were made to the Public Protector that maladministration had occurred during the process. She investigated the complaints and produced a report entitled 'Report of the C Public Protector on an Investigation into Allegations of Misappropriation of Public Funds, Improper Conduct and Maladministration by the Eastern Cape Provincial Government and Other Organs of State in Connection with the Expenditure Incurred in Preparation for the Funeral of the Late Former President Nelson Rolihlahla Mandela, "Aah! Dalibhunga"'.
[4] D The report contained four adverse findings against the applicant, Ms Nomdakazana Mbina-Mthembu, who was, at the time, the head of the provincial treasury in the provincial government. The remedial action of relevance to this matter that was directed by the Public Protector was that the 'Provincial Treasury of the Eastern Cape conduct an investigation into the financial misconduct of Ms Mbina-Mthembu E referred to in this report, in terms of Treasury Regulation 4.1.3, and to take the appropriate action'.
[5] Ms Mbina-Mthembu has applied for an order in the following terms:
'(R)eviewing and setting aside Report No 29 of 2017/2018 titled: F "Mandela Funeral: Report of the Public Protector on an Investigation into Allegations of Misappropriation of Public Funds, Improper Conduct and Maladministration by the Eastern Cape Provincial Government and Other Organs of State in Connection with Expenditure Incurred in Preparation for the Funeral of President Nelson Rolihlahla Mandela", which was released by the respondent on or about 4 December 2017, G either in whole or to the extent that such report makes certain findings against or concerning the applicant and/or the Eastern Cape Provincial Planning and Treasury and setting aside certain remedial action taken by the respondent against the applicant as contained in the said report.'
[6] H It was accepted by Mr Ntsaluba, who together with Mr Mapoma, appeared for Ms Mbina-Mthembu, that if the application was to succeed, Ms Mbina-Mthembu was not entitled to the setting aside of the whole report: she would only be entitled to the setting-aside of the adverse findings made in respect of her and the remedial action ordered I against her.
Plasket J (Nqumse AJ concurring)
Review of decisions of the Public Protector A
[7] Our Constitution is based, inter alia, on the values of constitutional supremacy and the rule of law. [2] Any conduct that is inconsistent with the Constitution is invalid. [3] All public power is subject to review by the courts. [4]
[8] Different 'pathways' [5] to review are recognised by the law. In this B case, reliance was initially placed on s 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) as the pathway to the review of the Public Protector's decisions in respect of Ms Mbina-Mthembu. [6] In the alternative, the principle of legality that flows from the founding value of the rule of law was relied upon. C
[9] After the application had been launched, however, the issue as to which pathway to review applies to the investigative, reporting and remedial powers of the Public Protector was determined by the Supreme Court of Appeal. In Minister of Home Affairs and Another v Public Protector [7] it was held that PAJA did not apply 'to the review of exercises of D power by the Public Protector in terms of s 182 of the Constitution and s 6 of the Public Protector Act [23 of 1994]', but that the principle of legality applies to the review of these exercises of power.
[10] This case concerns an application for the review of the exercise of power by the Public Protector, and not an appeal. This distinction is of E importance. Wade & Forsyth [8] explain the difference between the two as follows:
'The system of judicial review is radically different from the system of appeals. When hearing an appeal the court is concerned with the merits of a decision: is it correct? When subjecting some administrative act or order to judicial review, the court is concerned with its legality: is it F within the limits of the powers granted? On an appeal the question is "right or wrong"? On review, the question is "lawful or unlawful"?'
The authors describe judicial review as a 'fundamental mechanism for keeping public authorities within due bounds and for upholding the rule of law'. G
Plasket J (Nqumse AJ concurring)
[11] A Maintaining the distinction between review and appeal is of great importance because, as Baxter has said, '(w)ithout statutory authority, the court may not venture to question the merits or wisdom of any administrative decision that may be in dispute', that if it was to do so, 'it would be usurping the authority that has been entrusted to the administrative B body by the empowering legislation', and, what is more, it 'would be moving beyond its special area of expertise'. [9] These ideas were captured pithily by Lord Hailsham LC in Chief Constable of the North Wales Police v Evans [10] when he said that the 'function of the court is to see that lawful authority is not abused by unfair treatment and not to C attempt itself the task entrusted to that authority by law'.
[12] At common law, the justification for the power of courts to judicially review exercises of public power stems from the rule of law. [11] The grounds of review that were developed over the centuries fell within three broad categories — unlawfulness, unreasonableness and procedural D impropriety. [12] It is from this source that the fundamental right to just administrative action arose — the right to administrative action that is lawful, reasonable and procedurally fair. [13]
[13] The grounds of review that are set out in s 6(2) of PAJA are, in essence, a codified form of the common-law grounds of review (with one E or two having been developed, to an extent, and others having been omitted, by mistake) that are applicable to all exercises of public power. [14] (Prior to 1994, no distinction was drawn between administrative action as it is now defined and other forms of public power, such as executive action.) As a result, and generally speaking, the same grounds of review that apply to F reviews in terms of s 6 of PAJA now apply to reviews in terms of the principle of legality. [15] The common-law grounds of review that apply in reviews in terms of the principle of legality have,
Plasket J (Nqumse AJ concurring)
however, now been 'subsumed under the Constitution' and 'gain their A force from the Constitution'. [16]
The factual background
[14] The material facts are, by and large, common cause. Where there are disputes of fact, on the basis of the Plascon-Evans rule, [17] the Public Protector's B averments will prevail over those of Ms Mbina-Mthembu.
[15] When Mr Mandela died, the provincial government was expected to coordinate the arrangements for the funeral. A meeting of the province's top management, attended by seven heads of department, was held on the morning of 6 December 2013 to discuss planning for the C funeral. Ms Mbina-Mthembu's role in the meeting, according to her founding affidavit, was to 'advise how funds would be made available for the final Eastern Cape leg of the State Funeral as well as the Provincial memorial services as per the 10-day programme of the mourning period culminating in the funeral'.
[16] She told the meeting that there were two options available. The first D option was to obtain emergency funding in terms of s 25 of the Public Finance Management Act 1 of 1999 (the PFMA). Section 25(1) provides:
'The MEC for finance in a province may authorise the use of funds from that province's Provincial Revenue Fund to defray expenditure of an E exceptional nature which is currently not provided for and which cannot, without serious prejudice to the public interest in the province, be postponed to a future appropriation by the provincial legislature.'
[17] The second option was to use funds that had already been appropriated to a public entity or department, and to reimburse it later from the Provincial Revenue Fund. She favoured this option. F
[18] Ms Mbina-Mthembu then drafted a memorandum which was to be placed before the executive council of the provincial government (the Exco). It was dated 6 December 2013, was entitled 'Co-ordination and Variation of Use of Funds for an...
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Rhino Oil and Gas Exploration South Africa (Pty) Ltd v Normandien Farms (Pty) Ltd and Another
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