Charles v Premier of the Province of Mpumalanga and Others (21803/2004) [2008] ZAGPHC 309 (21 August 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Date: 21/08/2008

Case No: 21803/2004

UNREPORTABLE

In the case between:

RIENA CHARLES Applicant

And

PREMIER OF THE PROVINCE OF MPULALANGA 1st Respondent

DIRECTOR-GENERAL: MPUMALANGA

PROVINCIAL GOVERNMENT 2nd Respondent

MR TEBOGO ISAAC RAKGOALE NO 3rd Respondent

MR JAN HOON NO 4th Respondent

AUDITOR GENERAL 5th Respondent

JUDGMENT

Coram: Goosen AJ

[1] This is an application, inter alia, to have certain decisions taken by the third respondent (the presiding officer in disciplinary proceedings against the applicant), reviewed and set aside.

[2] An earlier application to interdict and restrain the second, third and fourth respondents from proceeding with the disciplinary hearing against the applicant and from dismissing the applicant, pending the outcome of the present application, was brought on an urgent basis and dismissed on 13 September 2004.

[3] In the present application the applicant seeks relief as set out in Part B of the notice of motion only. This court is asked, inter alia, to review and set aside:

1. The decision by the third respondent (such decision having been taken on the first day of a disciplinary hearing against the applicant, namely on 1 September 2004) refusing an application for postponement of the proceedings "in order to afford the applicant the opportunity to exercise her right to access of information regarding two forensic reports commissioned by ... the Auditor-General and the Department of Finance and Economic Affairs, Mpumalanga", respectively (see paragraph 6: Notice of Motion);

2. The decision by the second respondent (the Director-General: Mpumalanga Provincial Government) not to furnish the applicant with the two reports mentioned in paragraph 1 above, alternatively with such reports ex officio in his possession (see paragraph 7 : Notice of Motion);

3. The decision of the third respondent not to instruct the fourth respondent (the pro forma prosecutor) to furnish the applicant with the two forensic reports mentioned in paragraph 1 above (see paragraph 8 : Notice of Motion);

4. The proceedings before the third respondent and directing that the enquiry be started de novo in front of another presiding officer (see paragraph 9 : Notice of Motion).

[4] In addition to the above, the applicant also seeks an order that the second respondent and the fifth respondent (the Auditor-General) be directed to furnish her with copies of each of the reports mentioned above in their possession (see paragraph 10 : Notice of Motion).

[5] The background to the present application, is as follows:

A: EVENTS LEADING UP TO DISCIPLINARY HEARING:

1. On 4 May 2004 the second respondent informed the applicant (who was a deputy Director-General employed by the Mpumalanga Provincial

Government) in a letter of even date that –

"I have today, the 4h of May 2004, received a report on forensic investigations conducted by the office of the Auditor-General and another forensic audit, which was conducted at the instance of the then Department of Finance and Economic Affairs. On going through the said reports, serious allegations are made about your direct involvement in the following irregularities..."

The letter continues with providing the applicant with the allegations contained in the reports regarding irregularities allegedly committed by her and which could lead to her suspension.

2. The applicant through her attorney of record responded to the letter in paragraph 1 above on 10 May 2004, challenging the second respondent's entitlement to suspend her. In this letter it is pointed out that the letter referred to in paragraph 2 above contained nothing "new" as it deals with the same issues contained in a letter she had received long before, ie on 17 October 2002 written by Mr M S Tshitangano of the Provincial Treasury Department. Her attorney of record also requested on behalf of the applicant "... that should there be anything more contained in the reports than the allegations contained in the letter of Mr Tshukudu, that she be afforded the opportunity to address those issues..." (own emphasis).

3. The applicant was suspended from her office with effect from 7 May 2004 in a letter dated 11 May 2004 addressed to her by the second respondent. The second respondent informed the applicant expressly that he decided to suspend the applicant "... acting in terms of a Forensic Report... We based our decision on the findings and recommendations in that report, which was delivered to this office on 4 May 2004" (own emphasis).

4. On or about 2 July 2004 the second respondent issued a charge-sheet against the applicant as appears from Annexure "RC 1" to the applicant's founding affidavit. The applicant was notified to appear at a disciplinary hearing in a notice dated 2 July 2004 (see Annexure "RC3" to the applicant's founding affidavit at p 57).

5. The applicant, duly represented, appeared at a disciplinary hearing on 12 July 2004. By agreement between the applicant's legal representative and the fourth respondent, the presiding officer postponed the disciplinary hearing to 1 and 2 September 2004 for its commencement and continuation.

6. The fourth respondent supplied all the documentary evidence that he intended using at the disciplinary hearing, together with all the sworn statements of the witnesses that he was going to lead, to the applicant's council on 11 August 2004 (see paragraph 13.2 at p 292, first to fourth respondents' replying affidavit deposed to by Mr Soko).

7. On 21 August 2004 applicant's legal counsel sent an e-mail to the fourth respondent in which he confirmed that he had received the bundle of documents. He refers to the fact that he had not received a forensic report of Fivas and Associates although he acknowledges that portions thereof may form part of the bundle which he had indeed received. He enquired whether fourth respondent could provide him with same as it may (according to legal counsel), contain evidence favourable to the applicant, which would entitle the applicant to such report (see p319, being Annexure "R1" to the applicant's supplementary affidavit).

8. In paragraph 13.2 at p 292 of the first to fourth respondents' replying affidavit deposed to by Mr Soko, it is stated that the applicant's counsel and the fourth respondent had a pre disciplinary meeting on 1 September 2004. Counsel for the applicant advised the fourth respondent that he was not ready and prepared to proceed with the matter as he needed the auditor's report referred to in the founding affidavit of the applicant. The fourth respondent informed the applicant's counsel that he did not have the report.

B: THE DISCIPLINARY HEARING HELD ON 1 SEPTEMBER 2004

B1: The first application for a postponement:

9. During the proceedings on 1 September 2004, counsel for the applicant provided the third respondent with the following information from the bar in substantiation of the applicant's application for a postponement in order to afford the applicant the opportunity to exercise her right to access of information regarding two forensic reports commissioned by respectively the Auditor-General and the Department of Finance and Economic Affairs, Mpumalanga:

9.1 That it was clear from the letter referred to in paragraph 1 above that there are two reports, one by the Auditor­ General and one by Department of Finance and Economic Affairs and that neither of these reports were made available to the applicant.

9.2 That the applicant required the relevant reports which were used by the second respondent in suspending her.

9.3 That a day or two after 21 August 2004, the fourth respondent informed counsel for the applicant that" he will endeavour to get the documents" to him.

9.4 That the fourth respondent subsequently informed counsel for the applicant that he was not in a position to give it to him in view of the fact that "the documents are still with the Auditor-Genera”.

9.5 That the applicant seeks a postponement in order to afford her the opportunity of obtaining the information (reports) through the Access of Information Act and that the applicant would do so immediately should the postponement be granted and not waste time.

10. The fourth respondent, in turn, provided the third respondent on 1 September 2004 with the following information from the bar:

10.1 That he has provided counsel for the applicant with all the documentary evidence on which he intended relying during the hearing.

10.2 That fourth respondent tried his best to get a mandate from the second respondent to release the documentation and that he, to this end, convened a meeting with the Auditor-General (with the fifth respondent's Mr Mabile), to discuss the issue of the report currently in the fifth respondent's possession.

10.3 That the fifth respondent's representative confirmed to the fourth respondent that its report was in draft status and that the fifth respondent was accordingly not in a position to release it at this time. Fifth respondent's representative also indicated to the fourth respondent that the report will be finalised shortly after which it would be handed over to the second respondent to deal with it as it deems fit.

10.4 That the other report was in the possession of the second respondent, but that its status was also that of a preliminary report and that the fourth respondent received instructions that it was therefore also not available for distribution.

10.5 That fourth respondent did not have knowledge of the "insides of those reports", but that he thought that by releasing the reports "may add value to the process of defending this matter'.

10.6 That although the fourth respondent had seen sections of a report, he has not seen the full report and when he sat down preparing for the prosecution of the case he relied solely on the documentary evidence that was kept separate from the report.

10.7 That the documentary evidence which was kept separate from the report and which the fourth respondent intended to use, "was not even annexures to the report or anything".

10.8 That the fourth respondent has not seen any part of the report which" … may clear up some of the matters here, the concerns raised by my learned friend”.

10.9 That it was the fourth respondent's intention to rely solely on the documents furnished to counsel for the applicant, supported by the verbal testimony of people that was identified as witnesses in the disciplinary hearing.

11 The third respondent in considering the application for postponement, then proceeded to ask certain questions in clarification, namely:

11.1 Whether the fourth respondent intended to utilise the report in the disciplinary proceedings, to which the fourth respondent replied in the negative and without any qualification whatsoever;

11.2 Whether counsel for the applicant has ever had insight into the report, to which the reply was also in the negative;

11.3 Counsel for the applicant then once again referred to a suspicion (which he called well-founded, not absurd, not far fetched, without providing information) that the report contains information that will assist the applicant in one important aspect of one of the defences that he intended to raise on the applicant's behalf, namely selective discipline, which he believed would be to the applicant's advantage or to the disadvantage of the second respondent. The third respondent questioned the relevance of the report in the light of the fact that the second respondent, represented by the fourth respondent, did not intend relying on the report, but solely on the documentation in possession of all the parties at the disciplinary hearing;

11.4 Counsel for the applicant then referred to section 23 of the Constitution and "various other Acts" and submitted that "if there are documents in possession of the State, and we are talking State here, because my client works for the State, that contain information which are in our favour, (we) are entitled to it. We are saying that without those documents, without those reports, we cannot prepare fully". He then also referred to clear indications in the statements in his possession that there were certain deliberations relating to the Tender Board, and submitted that"... we have a funny suspicion that it is in possession of the State and that it is contained in those reports" (own emphasis);

11.5 Counsel for the applicant then suggested that even if those deliberations are not contained in the report, the applicant was entitled to acquire "that other information ... by following the same Act;

11.6 Finally, counsel for the applicant once again referred to the letter referred to in paragraph 1 above, dated 4 May 2004 (ie a letter predating the disciplinary enquiry commencement date by approximately four months), submitting that it was quite clear from that letter and further discussions that counsel for applicant had with the applicant herself that the second respondent "is relying specifically on that”, with reference to the two reports referred to in the letter of 4 May 2004;

11.7 Acknowledging that the applicant was entitled to sufficient information to prepare herself to ensure that there is procedural fairness, the third respondent then posed the question whether the applicant had sufficient information to prepare her against the charges, stating "what the employer representative informs us is that he has done his investigation, he has drafted the charge sheet, and he has not utilised the report as such. The report might have been used as the basis for suspension, but at the moment we are not sure that the report … in fact we are sure that the report is not being used as the basis for the charges. So I cannot understand if you say the employee did not have sufficient information upon which she can prepare herself sufficiently for the enquiry. And I still don't find it. I still can't understand what is it that would make us to really say that it will be …";

11.8 The third respondent, having heard further argument from counsel for the applicant, then made the following ruling (at p 105, being p 18 of the transcript of the disciplinary hearing):

"I am really not convinced that, because we don't known what is in the report, that that can really form the basis for the postponement. And I think my ruling is that we can proceed. If you still want to get the report you can still get it, either through the employer or by following other processes. But as for now I think that the information before us, the information that the employer has given to the employee, sufficiently puts her in a position to proceed with the matter. And I think that it will be fair that we proceed."

B2: The second application for a postponement:

12. In response to the aforegoing ruling by the third respondent, counsel for the applicant then applied for a postponement based on the third respondent's ruling, to afford the applicant the opportunity to take that ruling on review to the High Court or the Labour Court. The third respondent promptly dealt with this second application for postponement, as follows:

12.1 Third respondent stated that taking a ruling on review or the Labour Court, did not mean that the disciplinary enquiry has to be postponed. He stated that the applicant is entitled to take the ruling on review, but that the matter could still proceed and would indeed proceed.

12.2 He explained it in the following terms:

"There is nothing preventing the employee still to take the matter on review, because in any event the review is not going to be dealt with here. It is going to be dealt with by some other forum. And this forum is not going to review its own decision. So this forum cannot be stopped from proceeding. If the employee feels that there is a need to take the matter on review, that can still be done, but it doesn't stop this process. (My emphasis)

B3: The application to instruct fourth respondent:

13. Thereafter counsel for the applicant applied for an instruction from the third respondent to the fourth respondent to furnish the applicant with the forensic audit which was conducted at the instance of the Department of Finance and Economic Affairs. This application clearly did not relate to the report of the Auditor General (see p 108, being p 21 of the transcript of the disciplinary enquiry). Counsel for the applicant explained this application as follows:

13.1 "The application is you must please instruct pro forma Prosecutor to make available to us the second report", referring specifically to the report which fell squarely under the second respondent and not to the report of the Auditor-General;

13.2 He continued: "My application is simply the following: You must instruct Mr Hoon to make available to us the second report. The second report being the forensic report, not instituted by the Auditor-General, namely the Department of Finance and Economic Affairs. That is the application at this stage. Sorry, the grounds of course mutatis mutandis the same as previously indicated to you";

13.3 Motivating this application, counsel for the applicant added the following additional motivation:

"I would like to add that we have the right to access to information in terms of the Constitution if our rights are affected. Our rights that are affected at this stage is the fact that we stand to be dismissed on charges of misconduct. We have the right to information. ...

We say since we have that right and that right is not being granted to us, in order to ensure a fair procedure, you as the tribunal must make sure that our rights are protected. There is no doubt, and this is common cause, that this specific report contains information relevant to this hearing …

We want you to protect our right and the right is the right to information and that you can do by ordering the State pro forma Prosecutor to supply the information to us."

14. The third respondent pointed out that he was not vested with the powers to issue an instruction to the fourth respondent. He explained it as follows:

"I don't think I have those powers. The right to access to information, is a very important right. It is enshrined in the Constitution and it is also much more explained in the Access to Information Act. That Act is clear, if somebody needs information there are procedures that need to be followed there. I cannot just come and say to any official I need this information. Even if that official would want to protect that right, that official would not have the power to do that. Similarly in my case I do not have the power to order the supply of information based on that right enshrined in the Constitution. The Access to Information Act is clear on how does an individual who feels that his or her rights are affected and would need to use certain information in order to protect those rights. It is clear what must be done. It cannot be an application that can be brought here. My mandate here is very limited. I am just here to hear the charge against the employee and I cannot go beyond that. I cannot come with something that would be against the legislation. The legislation is clear, if you want the information that is held by the State. this is the procedure that you follow. I don't have those powers." (own emphasis)

B4: Application for the matter to stand down:

15. Counsel for the applicant then asked the third respondent to stand the matter down in order for the applicant to launch an urgent application to the High Court to interdict the third respondent and the second respondent from proceeding with the matter, ie the disciplinary hearing pending the relief that the applicant has requested the third respondent to grant, ie information and the review of the third respondent's decisions. Third respondent replied to this request to stand the matter down as follows:

"I will not postpone or stand down the matter. If you, like I indicated earlier on, if you want to bring an application to Court, whether it is interdict, review application, access to information application, those things can still proceed. But they cannot be said to be blocking the misconduct enquiry. The misconduct enquiry will still proceed."

16. The disciplinary hearing duly proceeded and the charges were put to the applicant. The applicant pleaded not guilty and counsel for the applicant and the applicant excused themselves from the proceedings "with the purpose of lodging this application". In her founding affidavit, the applicant alleges that they did so because neither her counsel or the applicant herself were properly

prepared to proceed with the hearing, elaborating as follows:

"It would not have served any purpose to attend a hearing for which we were ill equipped and prepared" (see paragraph 41 at p 14: applicant's founding affidavit)

C: THE EVENTS SUBSEQUENT TO THE DISCIPLINARY HEARING ON 1 SEPTEMBER 2004:

17. The fourth respondent started leading evidence, in the applicant's absence, during the afternoon on 1 September 2004.

18. This process continued on 2 September 2004 as the matter was set down for two days, being 1 and 2 September 2004.

19. The matter could not be finalised on 2 September 2004 as one of the witnesses was not present due to illness.

20. On the same day, the applicant filed the present application, in two parts, namely Part A and Part B. The relief claimed in Part A pertains to the urgent application which was subsequently dismissed by this court on 13 September 2004. The first to fourth respondents' answering affidavit was duly filed on 7 September 2004.

21. The disciplinary proceedings against the applicant proceeded on 14 September 2004 (ie one day after the applicant's urgent application was dismissed), still in the absence of the applicant (see Record: p 343, par 2.5). Also on 14 September 2004 the applicant's attorney of record addressed a letter to the second respondent requesting him to furnish the applicant with copies of the two reports in question, in response to which the second respondent furnished the applicant with the so-called "Fivaz Report", which seems to be the report that formed the subject matter of the application to instruct referred to hereinbefore, namely the report of the Department of Finance and Economic Affairs. The second respondent informed the applicant at the same time that the Auditor-General had indicated that he is not ready to release his report (because of the fact that it was still in a draft form) (see Record: p 384, par 2.5.1).

22. On 28 September 2004, being a date to which the disciplinary proceedings were postponed, the applicant appeared in person and requested a postponement on the grounds that her legal representative was not available and that she was still awaiting the Auditor-General's report and furthermore wished a transcription of the record of the proceedings to be made available to her (see Record. p 385, par 2.5.2). The applicant's request for a postponement was once again refused, whereupon the fourth respondent proceeded to complete all the evidence that he intended to adduce at the disciplinary hearing (see Record: p 385, par 2.5.3).

23. The third respondent then requested both parties to submit heads of argument, to which request only the fourth respondent complied (see Record: p 385, par 2.5.4).

24. On 21 October 2004 the third respondent delivered his judgment/findings convicting the applicant on four of the nine charges (see Record: p 385, par 2.5.5).

25. Thereafter the third respondent called upon the parties to make representations on an appropriate sentence to which the applicant on this occasion responded through her legal representative (see Record: p 385, par 2.5.6).

26. The third respondent then recommended that the applicant be dismissed, which recommendation was accepted by the second respondent and the applicant was accordingly dismissed with effect from 1 December 2004 (see Record: pp 385-386, par 2.5.7).

27. On 23 December 2004 the applicant declared a dispute in terms of the Labour Relations Act, 1995, whereupon the matter was referred to arbitration which was initially set down for 18 February 2005, but postponed by agreement between the parties to be heard during the period 11 to 13 May 2005 (see Record: p 386, par 2.5.8).

28. On the same date, 23 December 2004 and without filing any further papers in this matter, the applicant enrolled the matter for hearing on 5 April 2005, for purposes of determination of Part B of the notice of motion (see Record: p 386, par 2.6). The events between 23 December 2004 and 5 April 2005 are not strictly relevant to the merits of the present application, but requires further consideration in terms of an appropriate order for the wasted costs of 5 April 2005. These events appear from the heads of argument filed on behalf of the first to the fourth respondents, dated 29 July 2005 at paragraphs 2.4 to 2.5 thereof (pp 20-24 of such heads of argument).

29. The present application which was set down for hearing on 5 April 2005 was by agreement between counsel removed from the roll and the costs were reserved because the matter was not ripe for hearing.

30. Part B of the present application was eventually set down for hearing on 5 August 2005 and after having heard counsel on behalf of both parties, I reserved judgment.

[6] Mr van der Byl se, acting for all the respondents, submitted that no case has been made out on the papers that any of the decisions challenged have been taken irregularly or that the decisions in themselves were unlawful. In this regard he submitted that all the relief claimed in Part B of the notice of motion relate to the failure to furnish the applicant with the two reports in question and to the fact that the fourth respondent has stated that he had no intention of using the reports for purposes of the disciplinary proceedings against the applicant. He also submitted that the applicant failed to show that the reports were relevant to the disciplinary proceedings (one report having been in draft form only) so that no case has been made out for the granting of the relief referred to in paragraph [3]1 above.

[7] As regards the relief claimed as set out in paragraph [3]2 above, he submitted that there was no evidence on the basis of which a so­ called decision of the second respondent not to furnish the applicant with the reports in question can be reviewed, since the second respondent was never requested by the applicant to furnish her with the reports.

[8] With reference to the relief set out in paragraph [3]3 above, he submitted that there was no basis for such relief since the third respondent had no authority to instruct the fourth respondent to furnish the applicant with the two reports as he was not in possession of the reports.

[9] Lastly, he submitted that the applicant, in order to succeed in her claim as set out in paragraph [4] above must show that the required reports are relevant to the disciplinary proceedings so as to prepare herself in her defence in the proceedings which she failed to do.

[10] All in all, the nub of Mr van der Bijl's argument was that the applicant failed to show the relevancy of the reports to the disciplinary

proceedings. She sought the reports, so he submitted, to show that the disciplinary proceedings are the result of selective discipline

applied to her and to establish certain speculative possibilities.

[11] Mr Rautenbach, who appeared on behalf of the applicant submitted that the third respondent acted unreasonably and irrationally in a number of respects. In this regard he submitted that the third respondent acted unreasonably:

1. By not granting a postponement, especially after the fourth respondent had only indicated two days before the disciplinary hearing that the second respondent's attitude was that the applicant was not entitled to its preliminary report and also that the fifth respondent's attitude was that its report was only in draft form; not finalised; and in any event qualified to the extent that it was not to be used in proceedings of this nature. In support of this submission, he pointed out that the importance of the forensic reports should not be underestimated and that the third respondent was well aware of the fact that the applicant could not foresee the attitude of the fifth respondent and the second respondent regarding the disclosure of the said reports;

2. By not granting the applicant a postponement to take his refusal to postpone the disciplinary enquiry, pending an application in terms of the Promotion of Access to Information Act, on review. He submitted that the refusal was particularly unreasonable as there was no urgency to proceed with the matter on the day in question and also in the light of the fact that counsel for the applicant indicated to the third respondent that an urgent application was to be brought in the High Court to review his refusal to grant a postponement. He further submitted that the unreasonableness of the aforesaid decisions by the third respondent was further exacerbated by the fact that the fourth respondent did not oppose the original application for postponement or the application to postpone the matter pending an urgent application to review his decision;

3. By not ordering the fourth respondent to furnish the applicant with at least the internal report compiled at the instance of the Department of Finance and Economic Affairs as this report was clearly a document which was in possession of the second respondent;

4. By not considering this request by the applicant with reference to the Constitution. In this regard it was submitted that the third

respondent in fact ignored the provisions of the Constitution as well as the Promotion of Administrative Justice Act, all of which is indicative of a failure on the part of the third respondent to apply his mind to the matter;

5. By not granting a postponement or an adjournment of the proceedings, pending the outcome of an urgent application, which application was brought afresh before the third respondent after the application to order the fourth respondent to supply the reports was refused;

6. By proceeding with the disciplinary enquiry in the applicant's absence. In this regard he submitted that the third respondent should have realised that the urgent application would be heard within a day or two and that a significant delay would thus not have taken place. Third respondent should have realised, so it was submitted, that it would be extremely difficult for the applicant to have proceeded with the disciplinary enquiry without having access to the two forensic reports;

7. By not allowing a postponement, especially as it was common cause that the disciplinary matter could not be completed during the course of 1 or 2 September 2004 as one of the witnesses was unavailable;

8. By not having due regard to the fact that this was the first time that the applicant applied for a postponement of the proceedings and especially in the light of the fact that the applicant was only informed two days before the actual hearing of the stance adopted by the second and fifth respondents in respect of the two reports.

[12] Mr Rautenbach submitted that the decisions made by the third respondent were all grossly unreasonable and points towards bias on his part.

[13] Both counsel referred me to a number of authorities dealing with the requirements for a common law review. After having referred me to African Realty Trust Ltd v Johannesburg Municipality 1906 (TH) 179 at 182 (which was approved on appeal in the same matter reported in 1906 (TH) 908 at 913), Mr Rautenbach submitted that gross unreasonableness was also held to constitute a ground for interference by the court when it amounts to proof that the person on whom the discretion was conferred did not apply his mind to the matter. He further pointed out that pre-constitutional jurisprudence failed to establish reasonableness or rationality as a ground of review and that unreasonableness was only considered to be a ground of review to the extent that it could be shown that the decision was so unreasonable as to lead to a conclusion that the official failed to apply his or her mind to the decision. He then referred me to post-constitutional jurisprudence bolstered by section 33 of the Constitution which requires administrative action to be reasonable. Reference was made to Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Others 2004 (4) S A 490 (CC). He lastly submitted "that reasonableness or rationality of a decision is therefore a freestanding ground of review".

[14] Mr van der Byl SC submitted that the unfairness of a decision in it­ self has never been a ground for review. He pointed out that some­ thing more was required, namely that the unfairness has to be of such a degree that an inference can be drawn from it that the person who made the decision had erred in a respect that would provide grounds for review. At the same time he acknowledged that courts have to ensure that the administrative process is conducted fairly and that decisions are taken in accordance with the law and consistently with the requirements of the controlling legislation. Once it is clear that these requirements are met and if the decision is one that a reasonable authority could make, whether or not such decision is regarded to be wrong, the courts would not interfere with the decision. For this latter submission he referred me to Bell Porto School Governing Body v Premier, Western Cape 2002 (3) S A 265 (CC) at 291 H, para [85], [86] and [87]. He lastly referred me to Shidiack v Union Government (Minister of the Interior) 1912 AD 642 at 651 where Rose-Innes ACJ said the following:

"Now it is settled law that where a matter is left to the discretion or the determination of a public officer, and where his discretion has been bona fide exercised or his judgment bona fide expressed, the court will not interfere with the result. Not being a judicial functionary no appeal or review in the ordinary sense would lie; and if he has duly and honestly applied himself to the question which has been left to his

discretion, it is impossible for a Court of Law either to make him change his mind or to substitute its conclusion for his own … There are circumstances in which interference would be possible and right. If for instance such an officer had acted male fide or from ulterior and improper motives, if he not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of a statute - in such cases the Court might grant relief. But it would be unable to interfere with a due and honest exercise of discretion, even if it considered the decision inequitable or wrong. " (my emphasis)

[15] In the Bell Porto School Governing Body case (supra) Chaskelson CJ, who delivered the majority judgment, stated the following in respect of judicial review of administrative action:

"[85] For good reasons, judicial review of administrative action has always distinguished between procedural fairness and substantive fairness. Whilst procedural fairness and the audi principle is strictly upheld, substantive fairness is treated differently. As Corbett CJ said in Du Preez & Another v Truth and Reconciliation Commission: 'The audi principle is but one facet, albeit an important one, of the general requirement of natural justice that in the circumstances postulated the public official or body concerned must act fairly … The duty to act fairly, however, is concerned only with the manner in which the decisions are taken: it does not relate to whether the decision itself is fair or not.'

[86] The unfairness of a decision in itself has never been a ground for review. Something more is required. The unfairness has to be of such a degree that an inference can be drawn from it that the person who made the decision had erred in a respect that would provide grounds for review. The inference is not easily drawn.

[87] The role of the courts has always been to ensure that the administrative process is conducted fairly and that decisions are taken in accordance with the law and consistently with the requirements of the controlling legislation. If these requirements are met, and if the decision is one that a reasonable authority could make, courts would not interfere with the decision."

[16] Applying the principles laid down in the authorities that I was referred to by counsel, I know turn to the question whether this court should review and set aside the decision by the third respondent refusing an application for postponement of the proceedings "in order to afford the applicant the opportunity to exercise her right to access of information regarding two forensic reports commissioned by ... the Auditor-General and the Department of Finance and Economic Affairs, Mpumalanga", respectively. Would it be possible and right to interfere under the circumstances that prevailed on 1 September 2004 when the application for postponement was heard by the third respondent? I do not think so, for the following reasons:

1. Clearly the third respondent was vested with a discretion to either grant or refuse a postponement. If regard is had to the content of paragraphs B1:9 to 11 above, it must be clear that the third respondent afforded all the parties concerned ample opportunity to address him fully on the application for postponement. The third respondent himself asked a number of pertinent questions prior to him making his decision. There can therefore be no question that the third respondent thoroughly applied his mind prior to making his decision. The following facts appear clearly from the above-quoted paragraphs 9 to 11 of section B1:

1.1 That the third respondent acknowledged that the applicant was entitled to sufficient information to prepare herself and to ensure that there was procedural fairness;

1.2 That the report (counsel for the applicant informed the third respondent that he could treat the two reports as one for purposes of the application for postponement) may well have been used by the second respondent as the basis for suspension, but that it was certainly not being used as the basis for the charges against the applicant;

1.3 That the applicant had been aware of the existence of the two reports since 4 May 2004 and only requested the fourth respondent a few days before the commencement of the disciplinary hearing for copies thereof, ie only on 21 August 2004;

1.4 That the value of the report, if any, was based on speculation;

1.5 That the applicant at no time between 4 May 2004 and the disciplinary hearing made any attempt whatsoever to avail herself of the mechanisms created for access to information in terms of the Promotion of Access to Information Act;

1.6 That the fourth respondent did not see any part of the report which may clear up some of the matters and concerns raised by counsel for the applicant;

1.7 That the documentary evidence placed before the tribunal was at all times kept separate from the report and that such documents were not even annexures to the report or anything;

1.8 That as far as the impending proceedings before the third respondent were concerned, the fourth respondent did not intend to rely in any way on the report but intended to rely solely on the documents furnished to counsel for the applicant, supported by the verbal testimony of people that was identified as witnesses in the disciplinary hearing;

1.9 That the information that the second respondent has given to the applicant sufficiently puts her in a position to proceed with the matter and that it would accordingly be fair to proceed.

2. Having considered all the aforegoing facts and circumstances, the third respondent refused to grant the applicant a postponement.

3. One aspect of the applicant's approach to obtaining access to the report or reports which remains a conundrum and that is worth mentioning, is the following. The applicant had been informed about the existence of two reports on 4 May 2004 already. The applicant responded to the letter of 4 May 2004 on 10 May 2004 already. Even in her response (or, for that matter, before responding), the applicant did not insist on being furnished with the two reports. The applicant clearly left it to the discretion of the second respondent to disclose information contained in the report and only in the event"... that should there be anything more contained in the reports than the allegations contained in the letter of Mr Tshukudu ...". It is clear from counsel for applicant's address during the application for postponement in question that the applicant also challenged her suspension. It is also clear that the two reports indeed formed the basis for her suspension. In fact, the second respondent confirmed this fact in his letter dated 11 May 2004 in terms of which the applicant was suspended with effect from 7 May 2004. Yet the applicant did not bother to avail herself of the mechanisms provided for in the Promotion of Access to Information Act for purposes of her disputed suspension, but months later preferred to insist that she was not prepared and/or ready to proceed with the disciplinary enquiry, without being given access to the reports. Therefore, whilst it must have been clear to the applicant that the reports were highly relevant in the context of her suspension (and in connection with which she showed no interest in requesting copies of the reports), the same cannot be said in terms of relevance in respect of the disciplinary proceedings (and in connection with which she, months later, showed an acute interest in obtaining copies of the reports).

[17] The further aspect worth mentioning relating to the third respondent's refusal to grant the applicant a postponement on 1 September 2004 is the following: The court dismissing the urgent application brought on 13 September 2004 must of necessity also have considered the applicant's entitlement to a postponement on 1 September 2004. I say this for the following reasons:

If that court considered the applicant to have been entitled to a postponement, the relief sought by the applicant in Part A of the notice of motion (being the urgent relief sought) would no doubt have been granted as a matter of course. Surely that court would have interdicted the second and third respondent from proceeding with the disciplinary enquiry and from dismissing the applicant, if it were of the view that the third respondent acted unreasonably in refusing to grant the applicant a postponement. In dismissing the urgent application, that court was indirectly sanctioning the continuation of the disciplinary enquiry and possible dismissal of the applicant, if found guilty, on the basis that the third respondent's refusal to grant the postponement was not unreasonable. To this extent there is some merit in the submission made by counsel acting on behalf of the first to fourth respondents that all the relief claimed in Part B was, as is apparent from Part A, premised on the basis that the relief claimed in Part A would be granted.

[18] On the basis of all the aforegoing, I am unable to find that the third respondent acted unreasonable in refusing the application for postponement in order to afford the applicant the opportunity to exercise her right to access of information regarding the two forensic reports referred to in prayer 6 of Part B of the notice of motion.

[19] I now turn to the relief sought in prayer 7 of Part B of the notice of motion, namely reviewing and setting aside the decision by the second respondent not to furnish the applicant with the two reports mentioned in prayer 6, alternatively, with such reports ex officio in his possession. When this matter was argued before this court, ie on 5 August 2005, almost a year after the applicant had launched the application, she had already been furnished with the report which had been in possession of the second respondent (previously called the preliminary report obtained by the Department of Finance and Economic Affairs, Mpumalanga). I have already alluded to the fact that the applicant only once indirectly requested disclosure of "further allegations" which might have been contained in the reports as appears from the letter addressed by the applicant's attorney of record to the second respondent on 10 May 2004. I have already referred to the further fact that the applicant left it to the second respondent's discretion whether or not the reports contained such further allegations in which event she requested disclosure thereof. The request made by counsel for the applicant in the e-mail of 21 August 2004 refers to a forensic report of Fivaz and Associates and is addressed to the fourth respondent and not to- the second respondent. To the extent that fourth respondent conveyed this request to some or other official in the employ of the Mpumalanga Provincial Government who informed him that that report was still preliminary and would therefore not be made available, such a request cannot be equated with a request by the applicant, resulting in some or other formal decision having been taken by the second respondent not to furnish the applicant with the reports. It is not possible to review and set aside a decision that applicant never required the second respondent to make. There is in any event no evidence whatsoever that the second respondent had been in possession of the Auditor-General report at the time when the applicant launched her application or at any time thereafter. Moreover, the applicant never availed herself of the mechanisms created in the Promotion of Access to Information Act, to give effect to her constitutional right of access to such information held by the second respondent, as she

might have been entitled to. Had she availed herself of mechanisms created by the aforesaid Act, the second respondent might or might not have availed himself of the provisions of Chapter 4 dealing with the grounds for refusal of access to records. In such a case there might have been a decision taken by the second respondent which might or might not have been reviewable.

[20] For the aforegoing reasons I am unable to grant the relief claimed in prayer 7 of Part B of the applicant's notice of motion.

[21] In prayer 8 of Part B of the applicant's notice of motion, this court is asked to review and set aside the decision of the third respondent wherein he failed to instruct the fourth respondent acting on behalf of the second respondent to furnish the applicant with the two forensic reports mentioned in prayer 6. I am unaware of any power vesting in the third respondent to issue such an instruction to the fourth respondent. It was common cause that the fourth respondent was not even in possession of any of the two reports at any time prior to 1 September

2004 or thereafter. There is no evidence that the second respondent was in possession of the forensic report commissioned by the

Auditor-General at the time when the applicant launched the present application. Even assuming that the fourth respondent was in

possession of any of the two reports, I am not convince that the third respondent would have had the power to simply instruct the

fourth respondent to furnish the applicant with the two forensic reports. Moreover, when this matter came before me on 5 September

2005 the disciplinary hearing had already been completed almost eight months before. The basis for the relief sought in this paragraph was to enable the applicant to assist her in the preparation of her defence in the disciplinary hearing. Accordingly, by the time the application was argued before me, the granting of the relief would have been of academic interest only. I also need to point out that the application to instruct which served before the third respondent only related to the Fivaz report (see para 13.1-13.3 above) and not to two reports, as prayer 7 would suggest. The Fivaz report had been given to the applicant on or before 14 September 2004, when she for the first time requested a copy thereof from second respondent, as she should have done in the first place. She could have and should have done so when the existence of these reports was brought to her attention as far back as 4 May 2004.

[22] For the aforegoing reasons, I am unable to grant the applicant the relief set out in prayer 8 of Part B of her notice of motion.

[23] In prayer 9 of Part B of the applicant's notice of motion, this court is asked to review and set aside all proceedings before the third respondent and directing that the enquiry be started de novo in front of another presiding officer. In view of my findings in respect of prayer 6 above, there is no basis whatsoever for me to grant the relief set out in prayer 9. I also need to point out that the applicant never filed a supplementary affidavit to deal with the events subsequent to the dismissal of the urgent application on 13 September 2004. Mr Rautenbach also did not address me in any detail on the alleged unreasonableness and/or irrationality on the part of the third respondent after 1 September 2004 up until the conclusion of the disciplinary hearing.

[24] In prayer 10 of Part B of the applicant's notice of motion, this court is asked to direct the second and fifth respondents to furnish the applicant with copies of each of the reports mentioned in prayer 6 in their possession. As is the case with the relief sought in prayer 8, when this matter came before me, the disciplinary enquiry had long been concluded and the purpose for which the applicant required copies of the reports, namely in preparing her defence to the charges, fell away. The relief claimed in prayer 10 has accordingly also become of academic interest only. In any event, the second respondent furnished the applicant with a copy of the Fivaz report on or about 14 September 2004, already, ie almost a year prior to the hearing of this application.

[25] Mr Rautenbach did not address me or respond to the issue of the wasted costs of 5 April 2005, when the matter was postponed sine die and costs reserved. On the basis of the submissions made by counsel for the first to fourth respondents in his heads of argument, I have come to the conclusion that the wasted costs should be awarded to the first to fourth respondents.

[26] In view of all the aforegoing, I make the following order:

The application is dismissed, with costs, including the wasted costs occasioned by the postponement of the application on 5 April 2005.

DATED at PRETORIA ON THIS THE 15th DAY OF AUGUST 2008.

Goosen A J