Lekwene and Another v Public Protector of South Africa and Others (1303/2021) [2022] ZANCHC 22 (7 March 2022)

Lekwene and Another v Public Protector of South Africa and Others (1303/2021) [2022] ZANCHC 22 (7 March 2022)

The court found that the Public Protector acted outside her powers by broadening the scope of her investigation beyond the original complaint and failed to conduct a full, unbiased and proper investigation. The Public Protector did not consider relevant evidence, including the context of the secondment and appointment of Mr Mothibi, and failed to engage with key stakeholders. The remedial action ordered was not authorised in law, as the Premier does not have disciplinary powers over an MEC, and the Public Protector did not afford the applicants a fair hearing regarding the contemplated remedial action. The findings of improper conduct and maladministration were irrational and unsupported...

Citation
[2022] ZANCHC 22
Parties
Applicant: Maruping Lekwene; Applicant: Member of the Executive Council for Health: Northern Cape; Respondent: The Public Protector of South Africa; Respondent: Busisiwe Mkhwebane; Respondent: Premier of the Northern Cape; Respondent: MEC for Finance, Economic Development and Tourism
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
7 March 2022
Case Number
1303/2021
Procedural Posture
Review Application / Judgment on Review
Outcome
Application granted; Public Protector's report, findings, and remedial action declared unlawful and set aside.
Judges
Mamosebo, SL Erasmus
Legal Topics
Public Protector Act, Executive Ethics Code, Remedial Action, Audi Alteram Partem, Legality Principle, Judicial Review
Administrative Law Constitutional Law Civil Procedure Public Protector Act Executive Ethics Code Remedial Action Audi Alteram Partem Legality Principle +1 more

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Parties

Maruping Lekwene

Applicant

Member of the Executive Council for Health: Northern Cape

Applicant

The Public Protector of South Africa

Respondent

Busisiwe Mkhwebane

Respondent

Premier of the Northern Cape

Respondent

MEC for Finance, Economic Development and Tourism

Respondent

Procedural Posture

Review Application / Judgment on Review

Legal Issues

  1. 1 Whether the Public Protector acted ultra vires by broadening the scope of her investigation beyond the original complaint.
  2. 2 Whether the Public Protector conducted a full, unbiased and proper investigation in accordance with her constitutional mandate.
  3. 3 Whether the Public Protector failed to consider relevant evidence and acted irrationally in her findings.

Ratio Decidendi

The court found that the Public Protector acted outside her powers by broadening the scope of her investigation beyond the original complaint and failed to conduct a full, unbiased and proper investigation. The Public Protector did not consider relevant evidence, including the context of the secondment and appointment of Mr Mothibi, and failed to engage with key stakeholders. The remedial action ordered was not authorised in law, as the Premier does not have disciplinary powers over an MEC, and the Public Protector did not afford the applicants a fair hearing regarding the contemplated remedial action. The findings of improper conduct and maladministration were irrational and unsupported...

Court Disposition

Application granted; Public Protector's report, findings, and remedial action declared unlawful and set aside.

Orders

  • The Public Protector's Report No. 09 of 2021/22, dated 03 June 2021, including the findings and remedial action at paragraphs 7.5 to 8.1.2, are declared unlawful and invalid and accordingly reviewed and set aside.
  • The first and second respondent (in her official capacity) are ordered, jointly and severally, to pay the costs of Part A and Part B of the review application, including the costs consequent upon the employment of two counsel.