Gamede v Public Protector (99246/2015) [2018] ZAGPPHC 865; 2019 (1) SA 491 (GP) (29 August 2018)

Gamede v Public Protector (99246/2015) [2018] ZAGPPHC 865; 2019 (1) SA 491 (GP) (29 August 2018)

The court found that the Public Protector's refusal to provide information and documents during the preliminary investigation did not constitute administrative action as defined by PAJA. The preliminary stage is not a final determination and does not have direct, external legal effect. Therefore, the refusal is not subject to review under PAJA. Even if the refusal were reviewable, the applicant failed to establish exceptional circumstances justifying substitution of the decision. The application was accordingly dismissed with costs.

Citation
[2018] ZAGPPHC 865
Parties
Applicant: Muzikayifani Andrias Gamede; Respondent: The Public Protector
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 August 2018
Case Number
99246/2015
Procedural Posture
Review Application / Final Judgment on Review Application
Outcome
Application dismissed with costs.
Judges
De Vos
Legal Topics
Promotion of Administrative Justice Act, Administrative Action, Review of Administrative Decision, Substitution of Decision
Administrative Law Civil Procedure Promotion of Administrative Justice Act Administrative Action Review of Administrative Decision Substitution of Decision

Case Brief

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Parties

Muzikayifani Andrias Gamede

Applicant

The Public Protector

Respondent

Procedural Posture

Review Application / Final Judgment on Review Application

Legal Issues

  1. 1 Whether the Public Protector's refusal to provide information and documents during a preliminary investigation constitutes administrative action subject to review under PAJA.
  2. 2 Whether the applicant is entitled to an order substituting the Public Protector's refusal with a directive to produce the requested information.
  3. 3 Whether substitution is an appropriate remedy in the circumstances.

Ratio Decidendi

The court found that the Public Protector's refusal to provide information and documents during the preliminary investigation did not constitute administrative action as defined by PAJA. The preliminary stage is not a final determination and does not have direct, external legal effect. Therefore, the refusal is not subject to review under PAJA. Even if the refusal were reviewable, the applicant failed to establish exceptional circumstances justifying substitution of the decision. The application was accordingly dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.