Gordhan and Others v Public Protector and Others (36099/2098) [2020] ZAGPPHC 777 (17 December 2020)

Gordhan and Others v Public Protector and Others (36099/2098) [2020] ZAGPPHC 777 (17 December 2020)

The court held that the Public Protector lacked jurisdiction to investigate the complaint because no objectively determined special circumstances existed at the time she exercised discretion under section 6(9) of the Public Protector Act. The reasons for special circumstances were provided only after the investigation commenced, which is impermissible. The findings and remedial orders in the Report were based on material errors of law, including misinterpretation of statutory provisions and incorrect conclusions regarding the lawfulness of the applicants' conduct. The court found that the applicants were denied procedural fairness by not being afforded a hearing on remedial action. The...

Citation
[2020] ZAGPPHC 777
Parties
Applicant: Pravin Jamnadas Gordhan; Applicant: George Ngakane Virgil Magashula; Applicant: Visvanathan Pillay; Respondent: The Office of the Public Protector; Respondent: Busisiwe Mkhwebane; Respondent: The President of the Republic of South Africa; Respondent: Commissioner of the South African Revenue Services
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 December 2020
Case Number
36099/2098
Procedural Posture
Review Application / Judgment After Hearing on Merits and Interlocutory Applications
Judges
E.M Kubushi, M.L Twala, N. Davis
Legal Topics
Public Protector Jurisdiction, Special Circumstances Exception, Remedial Action, Audi Alteram Partem, Personal Costs Order, Review of Administrative Action
Administrative Law Constitutional Law Civil Procedure Public Protector Jurisdiction Special Circumstances Exception Remedial Action Audi Alteram Partem Personal Costs Order +1 more

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Parties

Pravin Jamnadas Gordhan

Applicant

George Ngakane Virgil Magashula

Applicant

Visvanathan Pillay

Applicant

The Office of the Public Protector

Respondent

Busisiwe Mkhwebane

Respondent

The President of the Republic of South Africa

Respondent

Commissioner of the South African Revenue Services

Respondent

Procedural Posture

Review Application / Judgment After Hearing on Merits and Interlocutory Applications

Legal Issues

  1. 1 Whether the Public Protector had jurisdiction to investigate a complaint older than two years under section 6(9) of the Public Protector Act.
  2. 2 Whether the Public Protector's findings and remedial orders were rational and lawful.
  3. 3 Whether the applicants were afforded procedural fairness, including a hearing on remedial action.

Ratio Decidendi

The court held that the Public Protector lacked jurisdiction to investigate the complaint because no objectively determined special circumstances existed at the time she exercised discretion under section 6(9) of the Public Protector Act. The reasons for special circumstances were provided only after the investigation commenced, which is impermissible. The findings and remedial orders in the Report were based on material errors of law, including misinterpretation of statutory provisions and incorrect conclusions regarding the lawfulness of the applicants' conduct. The court found that the applicants were denied procedural fairness by not being afforded a hearing on remedial action. The...