Cibane and Another v Premier of the Province of KwaZulu-Natal and Others (7655/2020P) [2023] ZAKZPHC 69 (19 June 2023)

Cibane and Another v Premier of the Province of KwaZulu-Natal and Others (7655/2020P) [2023] ZAKZPHC 69 (19 June 2023)

The court found that the applicants failed to demonstrate reasonable prospects of success on appeal. The majority decision in Presidential Authority of the South African Reserve Bank v Msiza and Motau was applicable, confirming that neither PAJA nor legality review applied to the forensic report, which had no external legal effect. The audi alterem partem principle was not violated, as the applicants were not interviewed due to their own conduct. The existence of pending proceedings in the Labour Court and Bargaining Council rendered the matter lis pendens, and the criminal charges against the applicants made the issue of their suspension academic. The application to strike out portions...

Citation
[2023] ZAKZPHC 69
Parties
Applicant: Ziphathe Mboneni Cibane; Applicant: Nonhlanhla Pamela Hlongwa; Respondent: Premier of the Province of KwaZulu-Natal; Respondent: Director General of the Office of the Premier of the Province of KwaZulu-Natal; Respondent: MEC for Finance KwaZulu-Natal; Respondent: Integrity Forensic Solutions; Respondent: Deputy Director General of the KwaZulu-Natal Treasury (Head of Investigation); Respondent: Advocate Joe Nxusani SC N.O.
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
19 June 2023
Case Number
7655/2020P
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application
Outcome
Application for leave to appeal refused with costs, including costs of senior counsel where applicable.
Judges
P C Bezuidenhout
Legal Topics
Review of Suspension, Forensic Investigation Report, Audi Alterem Partem, Lis Pendens, Disciplinary Proceedings
Administrative Law Labour Law Review of Suspension Forensic Investigation Report Audi Alterem Partem Lis Pendens Disciplinary Proceedings

Case Brief

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Parties

Ziphathe Mboneni Cibane

Applicant

Nonhlanhla Pamela Hlongwa

Applicant

Premier of the Province of KwaZulu-Natal

Respondent

Director General of the Office of the Premier of the Province of KwaZulu-Natal

Respondent

MEC for Finance KwaZulu-Natal

Respondent

Integrity Forensic Solutions

Respondent

Deputy Director General of the KwaZulu-Natal Treasury (Head of Investigation)

Respondent

Advocate Joe Nxusani SC N.O.

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application

Legal Issues

  1. 1 Whether the applicants have reasonable prospects of success on appeal against the dismissal of their review application.
  2. 2 Whether the forensic report and subsequent actions by respondents were reviewable under PAJA or the principle of legality.
  3. 3 Whether the audi alterem partem principle was violated by not affording applicants an opportunity to respond before adverse findings.

Ratio Decidendi

The court found that the applicants failed to demonstrate reasonable prospects of success on appeal. The majority decision in Presidential Authority of the South African Reserve Bank v Msiza and Motau was applicable, confirming that neither PAJA nor legality review applied to the forensic report, which had no external legal effect. The audi alterem partem principle was not violated, as the applicants were not interviewed due to their own conduct. The existence of pending proceedings in the Labour Court and Bargaining Council rendered the matter lis pendens, and the criminal charges against the applicants made the issue of their suspension academic. The application to strike out portions...

Court Disposition

Application for leave to appeal refused with costs, including costs of senior counsel where applicable.

Orders

  • The application for leave to appeal is refused.
  • Applicants are to pay the costs of the application, including the costs of senior counsel where applicable.