REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTEN DIVISION, PRETORIA

CASE NO.: 99246/2015

29/8/2018

In the matter between:

MUZIKAYIFANI ANDRIAS GAMEDE                                                                   Applicant

and

 
THE PUBLIC PROTECTOR                                                                                    Respondent

 
JUDGEMENT

DE·VOS J:

[1]        This is a review application in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), resulting from a refusal by the respondent to furnish information and documents requested by the applicant during the preliminary investigation process. The applicant also seeks further and ancillary relief.

[2]        The applicant , Muzikayifani Andrias Gamede, is the Member of the Executive Council (MEC) for the Department of Agriculture, Rural Development, Land and Environmental Affairs for the Mpumalanga Province. The respondent, the Public Protector ,received a complaint against him in his official capacity, regarding certain allegations of maladministration ,corruption and irregularities in the Department of which he is the MEC. The Public Protector undertook a preliminary investigation, in the course of which she informed the applicant about the allegations, and asked him to make certain information available to her.

[3]        The applicant brought this application as a result of the investigation. The relevant factual background will be dealt with later in this judgement. The applicant seeks a review of the Public Protector’s refusal to provide certain information and documents requested by him. The application is brought in terms of PAJA and the principle of legality, on the basis that the Public Protector’s refusal is an administrative decision and subject to review.

In addition to setting aside the purported administrative decision the applicant seeks an order substituting the Public Protector’s refusal with an order directing her to produce the requested information and documents within 30 days of the date of the order.

[4]       The Public Protector opposes this application on the basis that no reviewable 'decision' has been taken in the preliminary stage of the investigation. Therefore, the request for information and its subsequent refusal does not constitute administrative action for the purposes of PAJA and is not subject to review. Alternatively, and even if the refusal is reviewable, the respondent contends that the applicant has not made out a case for a decision to be set aside. It is further contended that substitution is an extraordinary remedy to be used in exceptional circumstances and the applicant has laid no basis for this court to grant such relief.

[5]        The prayers in this application are limited to the founding affidavit and the affidavits filed in opposition thereto. The applicant did not file any replying affidavit. The application is not based on any real dispute of facts. The issue before me is thus, strictly speaking, one of law. To the extent that any factual issue may arise, as with all motion proceedings, the Plascon-Evans-rule applies; see Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A). Final relief may therefore only be granted if the facts as stated by the respondent, together with the admitted facts in the applicant's affidavit, justify the granting of such relief; see Nampesca (SA) Products (Pty) Ltd v Zaderer 1999 (1) SA 886 (C) at 892H-J; Townsend Productions (Pty) Ltd v Leech 2001 (4) SA 33 (C) at 40E-H.

Background to the Application:

[6]        In June 2015 an anonymous complaint was lodged with the Office of the Public Protector against the applicant in his capacity as a Member of the Executive Committee for the Department of Rural Development, Land and Environmental Affairs: Mpumalanga Provincial Government. The applicant was accused of maladministration corruption, tender irregularities and infringement of the Department's procurement processes and procedures.

[7]        A lead investigator was assigned by the Public Protector to assist in the investigation of the complaints as envisioned by section 3 of the Public Protector Act 23 of 1994 (the Act).

[8]        The respondent, upon receiving the complaint, instituted a preliminary investigation to determine the merit of the complaint and how best to conduct the investigation. This is the respondent's usual procedure. Only after the preliminary investigations complete, and the complaints found to be substantive, will a full-scale investigation be launched.

[9]        The investigator allocated to the matter undertook an information gathering exercise. including the collation and procurement of information, and interaction with the complainant, the applicant and factual witnesses.

[10]      On 17 June 2015 the respondent wrote to the applicant as per annexure 'AG2', wherein the applicant was informed that:

[a]        the respondent was investigating a complaint lodged against him in his official capacity in connection with allegations of maladministration, corruption, tender irregularities and infringement of procurement processes and procedures;

[b]        the investigations were being conducted in terms of section 182(1) of the Constitution of the Republic of South Africa 1996, read with sections 6 and 7 of the Public Protector Act;>