Dlamini v Public Protector of South Africa and Others (11097/2018) [2020] ZAGPPHC 164 (10 March 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

NO: 11097/2018

REPORTABLE: YES

OF INTEREST TO OTHER JUDGES: YES

10/3/2020

TN THEMATTER BETWEEN:-

NM DLAMINI

APPLICANT

AND

THE PUBUC PROTECTOR OF SOUTH AFRICA

FIRST RESPONDENT

THE MINISTER OF WATER AND SANITATION

SECOND RESPONDENT

TRANS-CALEDON TUNNEL AUTHORITY

THIRD RESPONDENT

JUDGMENT

Introduction

[1] This is an application wherein the relief sought is to have set aside the determination of compensation made by the First Respondent in favour of the Applicant and to have the matter remitted to the First Respondent to make a determination in accordance with the settlement agreement entered into between the Applicant and the Second Respondent.

Background Facts

[2] The Applicant was at all times relevant hereto in the employ of the Department of Water and Sanitation and in 2005 served as Permanent Representative on the Lesotho Highlands Project. The Third Respondent has the responsibility for the implementation, operation and maintenance of that part of the Lesotho Highlands Project located in the Republic of South Africa.

[3] In 2009 she was appointed as the Republic of South Africa Permanent Representative and the Republic of South Africa Chief Delegate to the Lesotho Highlands Project which appointment was to endure until the 30 April 2011. On the 23 October 20111 her appointment was extended for five years with effect from the 12 October 2011.

[4] On the 29 October 2015, the Second Respondent informed the Applicant that she was to be redeployed with effect from the 30 October 2015. Aggrieved by this decision the Applicant lodged a complaint with the offices of the First Respondent alleging that her redeployment

constituted an unfair labour practise and further that she was unfairly remunerated in the post she held as Chief Delegate and

Permanent Representative.

[5] The First Respondent acting in terms of Section 6(4)(b) of the Public Protector Act No 23 of 1994 (‘the Act’) convened an Alternate Dispute Resolution (ADR) session which was chaired by the First Respondent and at which all the parties were represented.

The parties were able to reach a settlement of the matter on the 12 July 2016 and the settlement agreement provided as follows:-

“That the Department will reinstate the Complainant to her position as Chief Delegate and Permanent Representative of the Lesotho Highlights Water Commission with immediate effect·,

That the complaint agrees to voluntary release from her contract and the Department to purchase the balance of her contract period;

The Department will within the next 7 days remunerate the complaint according to the salary scale of the Chief Delegate back dated with interest to the date of the promotion and the amount will be determined taking into account the following:

The report on Remuneration of Key Staff dated 7 April 2015 commissioned by the TCTA it was adopted, if not, the report will be used as a guide·,

The remuneration package the current Chief Delegate;

Further the Department will ascertain whether the Complainant had been receiving out of country benefits and if not, to pay retrospectively to the date of her posting in Maseru;

That if the TCTA report is adopted between now and October 2016 and the payment will be retrospective;

That the Public Protector will refer all matters that are part of the settlement agreement to the Auditor General;

That the Public Protector South Africa will play an oversight role and monitor implementation of the settlement agreement.”

[6] On the 21 July 2016 a further meeting was convened between the parties by the First Respondent to discuss the determination of the amount due to the Applicant in terms of the settlement agreement. At that meeting it was recorded that the parties were unable to reach agreement on the settlement amount and it was agreed that the First Respondent should take a decision that would be regarded as final and binding on them.

[7] On the 14th October 2016 the First Respondent made the determination contemplated in the Settlement Agreement and decided that the Department of Water and Sanitation should pay to the Applicant in full and final settlement an amount equal to an increase

of 16% of her remuneration package backdated to 2009 with interest. That amount was computed at R 2 520 205.89 and it was paid to the Applicant after taxation was deducted therefrom on the 30 November 2016.

[8] To the extent that the determination of the First Respondent is challenged it may be useful to identify some of the reasoning of the First Respondent in coming to conclusion that she did.

a) In dealing with the Remuneration of Key Staff report the First Respondent concluded that if the report had been adopted (it is common cause that it was not) the amounts reflected in the report would probably have reflected the potential increase in remuneration

that the Applicant could have expected. The First Respondent however expressed the view that there was no legal basis for full reliance and the enforcement of the proposed adjustment as the report was never formally adopted.

b) The First Respondent also recorded that:

“ As the parties could not reach consensus on the final percentage of the escalation amount that would fairly and reasonably reflect the Complainant’s potential prejudice, the Public Protector is called upon to decide whether or not the 12% proposed by the Department is reasonable and fair, or whether there are overriding factors to conclude that the Complainant’s claim of 18% is justifiable.”

c) That the parties were in agreement that the amount that would constitute fair and reasonable financial redress is a matter of judgment of the Public Protector and finally

d) The First Respondent says that ... In assessing the proposals presented, I tried to balance the obligations of the State with regard to the public purse as well as the public interest with the demands for fair and just administration. I also took into account the complainants personal circumstances. “She concluded that she was satisfied that a compromise situation dictates that the 16% increase presents a fair and reasonable outcome to both parties.”

[9] It is this determination that the Applicant challenges and wishes to have reviewed and set aside on the basis that the First Respondent erred inter alia in:-

i) Not having proper regard to the report on Remuneration of Key Staff which was meant to be used as a guide and which was not so used.

ii) The First Respondent erred in taking into account the public purse, the public interest in a fair and just administration and / or the personal circumstances of the Applicant as these were not referred to in the Settlement Agreement as being relevant factors.

The opposition to the relief

[10] While the First Respondent has not sought to oppose the relief granted the Second and Third Respondents have done so and they

contend that.:-

a) The relief advanced in the Founding Affidavit is premised on the Promotion of Administrative Justice Act No 3 of 2000 (PAJA). It being accepted that the actions of the First Respondent, if they are reviewable, are only reviewable on the principle of legality and not PAJA it is not competent for the Applicant to seek to advance a case based on the principle of legality.

b) That the Settlement Agreement is akin to a private agreement between the parties and the request therefore that the Fist Respondent make, the determination does not involve the exercise of a public power on the part of the First Respondent and is therefore not reviewable alternatively

c) That even if it is found that the First Respondent was exercising-public power when she made the impugned determination, none of the review grounds advanced have been established and the application should accordingly be dismissed.

These are in essence also the issues in dispute and I proceed to deal with them.

[10] Analysis

a) The PAJA v principle of legality argument

The relief advanced in the Founding Affidavit sought to rely exclusively on PAJA and in Minister of Home Affairs v PP 2018 (3) SA 380 (SCA) the Court ruled that PAJA does not apply to the decisions of the Public Protector, At paragraphs 37-38 the Court concluded as follows:-

"That being so, PAJA does not apply to the review of exercises of power by the Public Protector in terms of s 181 of the Constitution at s 6 of the Public Protector Act. That means that the principle of legality applies to the review of the decisions in issue in this case. [38] It does not matter in this case that the application for the review is based on the principles of legality rather than PAJA. No procedural differences arise and the grounds of review that apply in respect of both pathways to review derive ultimately from the same - the common law - although, in PAJA, those grounds have been codified. [56] I have that the constitutional and statutory powers and functions vested in the Public Protector to investigate, report on and remedy maladministration are not administrative in nature and so are not reviewable in terms of s 6 of PAJA. This being so, the Public Protector's exercise of her core powers and functions is reviewable on the basis of the principle of legality that stems from the founding constitutional value of the rule of law”

Arising from that the Second Respondent sought to assert that it was therefore not competent for the Applicant to now seek in argument to rely on the principle of legality as that was not the case the Respondents were required to meet.

[11] In MEC for Health, Gauteng: v 3p Consulting (Pty) Ltd 2012 (2) SA 542 (SCA) Van Heerden JA held at 55lC At para 17 of the Court expressed the following view:-

“While it is so that a party in motion proceedings may advance legal arguments in support of the relief or defence claimed by it even where such arguments are not specially raised in the papers, provided that all relevant facts are before the court, this will not be allowed if it causes prejudice to the other party”

[12] That being the case the factual basis for seeking to place reliance on the principle of legality as opposed to PAJA was set out in the Founding Affidavit and it therefore remains open to the Applicant to seek to place reliance on the principle of legality in advancing the relief she seeks.

[13] To uphold the technical argument of the Second Respondent would be placing form above substance under circumstances where it is not warranted and this basis for opposition to the relief sought is hardly sustainable and must be dismissed.

a. The First Respondent was not exercising public power when making the determination

[14] The stance of the Third Respondent is that once .the parties had agreed to submit themselves to the process of mediation by their own volition and by doing so they exited the terrain where the First Respondent could exercise any public power as the conclusion of the Settlement Agreement was arrived at purely through the agreement of the parties and not any exercise of public power by the First Respondent.

[15] The Third Respondent accordingly contends that when the parties had sought a determination to be made by the First Respondent it therefore did not involve the exercise of any public power by the First Respondent but rather required of her to simply act as a valuator and her determination is accordingly not reviewable.

[16] In assessing this argument it is important to locate the genesis of the complaint and the powers of the First Respondent in the process in its entirety rather than simply insulating the mediation process from the rest of the process.

[17] The First Respondent became seized with this matter when she received and accepted the complaint by the Applicant and thereafter proceeded to act upon the complaint by requiring the Second Respondent to submit a response to the complaint.

[18] When the First Respondent referred the matter to mediation (with the concurrence of the parties) in terms of Section 6(4) (b) of the Act she continued to exercise the power she had in terms of the Act and the fact that the mediation was a voluntary process overseen and presided over by the First Respondent did not alter the nature of the power the First Respondent continued to exercise. It could hardly be argued with any measure of confidence that the First Respondent was simply a private citizen during the mediation process.

[19] When the parties concluded a settlement which provided that the First Respondent play an oversight role and monitor implementation of the settlement agreement it would have required the exercise of public power by the First Respondent in that process.

[20] And finally when the parties were unable to resolve the mailer of the compensation payable to the Applicant and agreed and requested that the First Respondent make such a determination it would have similarly required the exercise of public power by the First Respondent in doing so. It must be that the office of the First Respondent continued to remain seized with the complaint of the Applicant until finality and that a settlement agreement that required further steps to be taken did not bring the process to an end. In this regard it would certainly have been open to the First Respondent if she was satisfied that the Settlement Agreement was unlikely to resolve the matter to decide to-further investigate the complaint

[21] Simply put as long as the complaint remained with the office of the First Respondent and was dealt with by the First Respondent and her it would have involved the exercise of public power.

[22] The First Respondent and her staff derive all their powers exclusively from the Constitution and the Act and there can simply be no tenable basis to suggest that some actions on the part of the First Respondent can remain insulated from scrutiny on the basis that they do not involve the exercise of public power. There is with respect no other power that the First Respondent is able to exercise in her capacity as Public Protector other than public power.

[23] To hold otherwise would seriously undermine the architecture of the Constitution and the system of checks and balances that it has incorporated into our law in many areas including the proper exercise of public power.

[24] The First Respondent was asked to make the determination in her capacity as Public Protector and she accepted that role in the same capacity. It is inconceivable that she could have or was in law entitled to act in any capacity other than as Public Protector in making the determination. Ultimately the determination was signed off by her as Public Protector. This part of the challenge to the relief claimed is also not sustainable and falls to be dismissed.

b. The review grounds not established

[25] It was initially contended on behalf of the Applicant that the first Respondent was constrained in making the determination required of her to only have regard to the report on Remuneration of Key Staff and the remuneration package of the current Chief Delegate as provided for in the original settlement agreement between the parties.

[26] Counsel for the Applicant however conceded that if the making of the determination involved the exercise by the First Respondent of public power then she was entitled to exercise all her powers and not be constrained as was initially suggested. This was an appropriate concession to make as it could hardly be contended that a mediated agreement between the parties could have the effect of constraining the exercise of powers given to the First Respondent by law.

When I have regard to the report of the First Respondent and the explanation advanced for the decisions taken then the following

emerges:-

a) The First Respondent did have regard to the report on Remuneration of Key Staff but concluded that there was no legal basis for full reliance and the: enforcement of the proposed adjustment as the report was never formally adopted. I can find not criticism the stance adopted by the First Respondent in dealing with the report. It is abundantly clear that she considered it and if she

elected for good reasons-not to place reliance on it she was entitled to do so. Her conduct in this regard can hardly be suggestive of a reviewable irregularity.

b) Of significance is that when the parties came back to the First Respondent on the 21st July and requested her intervention they did so on account of their inability to reach consensus on the final percentage of the

escalation amount as being. The Department had proposed 12% while the Applicant had sought 18%. Paragraph 6.l.5 of the report of the First Respondent says the following : -

" As the parties could not reach consensus on the final on the final percentage of the escalation amount that would fairly and reasonably

reflect tire Complainant’s potential prejudice, the Public Protector is called upon to decide whether or not the 12% proposed by the Department is reasonable and fair, or whether there are overriding factors to conclude that the Complaints claim of 18% is justifiable”

c) It is therefore reasonable to assume that when the First Respondent became seized with the role of making a determination of an appropriate percentage escalation she would have been justified in assuming that the parameters of the dispute was fixing a percentage escalation within the range of 12% and 18%. None of the parties in these proceedings took issue with the First Respondent characterisation of the nature of the dispute and where the respective parties were at as set out in Paragraph 6.1.5 of her report and if that was the range within which she applied her mind then it appears to have been reasonable for her to do so.

d) Ultimately she decided that 16% represented a fair compromise between those contesting positions and it cannot be then said that her determination was irrational or unreasonable regard being had to the context and the balancing exercise she applied in making her determination.

e) It hardly matters if this Court would have fixed the percentage increase differently and that is not the test in any event as the Court must allow measure of deference to the First Respondent in her capacity as Public Protector and decision maker.

Under these circumstances I am not convinced that any of the review grounds advanced by the Applicant have any merit and in the result the application falls to be dismissed.

ORDER

I make the following order:-

The application is dismissed with costs.

__________________

NJ. KOLLAPEN

JUDGE OF THE HIGH

COURT, PRETORIA

APPEARANCES

DATE OF HEARING

: 2 MARCH 2020

DATE OF JUDGMENT

: 10 MARCH 2020

APPLICANT’S COUNSEL

: Advocate Mouton

INSTRUCTED BY:

: Marais Muller Hendricks Inc.

FIRST RESPONDENTS COUNSEL : No Appearance

INSTRUCTED BY

: No Appearance

SECOND RESPONDENTS COUNSEL : Advocate Loselo

NSTRUCTED BY

: The State Attorney

THIRD RESPNDENTS COUNSEL :

Advocate M Desai

INSTRUCTED BY

: Govender Patel Dladla Inc