Mbana and Others v Minister For Higher Education and Training and Others (3359/2014) [2015] ZAECPEHC 27 (16 April 2015)

Mbana and Others v Minister For Higher Education and Training and Others (3359/2014) [2015] ZAECPEHC 27 (16 April 2015)

The court found that the decision to appoint Deloitte & Touche Ltd to conduct an investigation into the affairs of Eastcape Midlands College constituted administrative action under PAJA, as it had the capacity to affect the rights of the applicants, including their employment status and reputation. The respondents...

Source-derived case information.

Citation
[2015] ZAECPEHC 27
Parties
Applicant: Justice Jamangile Mbana; Applicant: Ridwaan Moegamat Abdullah; Applicant: Frederick Paul Dennis; Respondent: Minister for Higher Education and Training; Respondent: Director-General of the Department of Higher Education and Training; Respondent: Director: Labour Relations, Department of Higher Education and Training; Respondent: Chief Director: Financial Planning and Co-operation, Department of Higher Education and Training; Respondent: National Education Health and Allied Workers Union; Respondent: Deloitte & Touche Ltd; Respondent: Eastcape Midlands College
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
16 April 2015
Case Number
3359/2014
Procedural Posture
Review Application / Judgment on Merits
Outcome
Application partly succeeds: the decisions to appoint the investigation and the investigator are reviewed and set aside; the report is declared unlawful; costs to be borne by each party.
Judges
J M Roberson
Legal Topics
Promotion of Administrative Justice Act, Unlawful Administrative Action, Jurisdiction of High Court, Standing Under Constitution, Powers of Minister, Forensic Investigation
Administrative Law Labour Law Promotion of Administrative Justice Act Unlawful Administrative Action Jurisdiction of High Court Standing Under Constitution Powers of Minister Forensic Investigation

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Parties

Justice Jamangile Mbana

Applicant

Ridwaan Moegamat Abdullah

Applicant

Frederick Paul Dennis

Applicant

Minister for Higher Education and Training

Respondent

Director-General of the Department of Higher Education and Training

Respondent

Director: Labour Relations, Department of Higher Education and Training

Respondent

Chief Director: Financial Planning and Co-operation, Department of Higher Education and Training

Respondent

National Education Health and Allied Workers Union

Respondent

Deloitte & Touche Ltd

Respondent

Eastcape Midlands College

Respondent

Procedural Posture

Review Application / Judgment on Merits

Legal Issues

  1. 1 Whether the decision to appoint an investigation into the affairs of the college was lawful administrative action.
  2. 2 Whether the appointment of Deloitte & Touche Ltd as investigator was authorised by any empowering provision.
  3. 3 Whether the suspension of the first applicant was inextricably linked to the investigation and thus unlawful.

Ratio Decidendi

The court found that the decision to appoint Deloitte & Touche Ltd to conduct an investigation into the affairs of Eastcape Midlands College constituted administrative action under PAJA, as it had the capacity to affect the rights of the applicants, including their employment status and reputation. The respondents failed to identify any empowering provision authorising the Director-General or Minister to appoint such an investigation outside the mechanism provided by section 46(1) of the CET Act. Reliance on Treasury Regulation 8.4.1 and the PFMA was misplaced, as these did not apply to public colleges in the manner asserted, nor did they authorise a forensic investigation of the scope...

Court Disposition

Application partly succeeds: the decisions to appoint the investigation and the investigator are reviewed and set aside; the report is declared unlawful; costs to be borne by each party.

Orders

  • The decision of the second respondent to appoint an investigation into the affairs of the seventh respondent is reviewed and set aside.
  • The decision of the second respondent to appoint the sixth respondent to conduct the investigation into the affairs of the seventh respondent is reviewed and set aside.