Minister of Finance v Public Protector and Others (15862/2019) [2020] ZAGPPHC 804; 2022 (1) SA 244 (GP) (31 August 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 15862/2019

31/8/2020

In the matter between:

MINISTER OF FINANCE

and

Applicant/Excipient

PUBLIC PROTECTOR

First Respondent

TSHIMANGADZO TSHIOLOLI

Second Respondent

MUSANDIWA RAMAVHALE

Third Respondent

L.J. RAMBAU

Fourth Respondent

DABALORIVHUWA PATRIOTIC FRONT

Fifth Respondent

TSHIFHIWA SAMUEL MAKHALE

Sixth Respondent

GOVERNMENT EMPLOYEES PENSION FUND

Seventh Respondent

MINISTER OF PUBLIC SERVICE AND ADMINISTRATION Eighth Respondent

JUDGMENT

KATHREE-SETILOANE J,

[1] On 11 March 2019, the Minister of Finance made application against against, inter alia, the Public Protector for an order declaring that the remedial action, contained in the Public Protector's Report 18 of 20112012 and Special Report 15 of 2016-2017 respectively has been discharged through substantial compliance. In the alternative, the Minister of Finance sought an order reviewing and setting aside both reports of the Public Protector.[1]

[2] Instead of filing an answering affidavit in response to the application, the Public Protector filed a rule 6(5)(d)(iii) notice.[2][3]The Minister of Finance subsequently brought this interlocutory application by way of rule 23(1) in which it takes an exception to the points of law set out in the rule 6(5)(d)(iii) notice of the Public Protector.

Points of Law

[3] The Public Protector raises five points of law in her rule 6(5)(d)(iii) notice. These are:

(a) Pre-emption: The application is pre-empted the Minister’s conduct from April 2002 until 14 February 2012 is inconsistent with an intention to challenge the remedial action in any way. In fact, the Minister has, both by commission and by omission, clearly and unconditionally

acquiesced in, and decided to abide by, the remedial action of the Public Protector since April 2002 until, at the latest, February

2012.

(b) Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”) inapplicable: The Minister relies on PAJA in support of its conditional review of the Public Protector's Reports, findings and remedial action. The Minister cannot validly rely on PAJA because, on the clear and unequivocal authority of the Supreme Court of Appeal (“the SCA”), the Public Protector's findings and remedial action do not constitute administrative decisions, and so cannot be reviewed and set aside under PAJA. Consequently, to the extent that the conditional review application is predicated on PAJA, it falls to be dismissed without more.

(c) Non-Joinder of National Assembly: The Minister has failed to join the National Assembly which clearly has a constitutional interest in this application by virtue of its constitutional obligations to oversee the exercise of executive authority and action (of the Minister) and organs of state (National Treasury) as it has demonstrated in this matter, and in the documents that the applicant seeks to have excluded.

(d) 2016 Special Report not susceptible to review or discharge: The Minister seeks an order declaring, inter alia, that the 2016 Special Report has been discharged or, alternatively, an order

setting aside the "remedial action" contained in the 2016 Special Report. However, the 2016 Special Report clearly and

unequivocally takes no remedial action but simply seeks to facilitate implementation of the remedial action taken in the 2011-2012 Report. The application falls to be dismissed to the extent that it attacks "remedial action" in the 2016 Special Report.

(e) Legality not properly pleaded: The Minister has failed to plead legality grounds of review properly.

Parties submissions

[4] The Minister of Finance contends that it is not competent for the Public Protector to withhold filing an affidavit in response to the application, in the light of the Constitutional Court specifically finding that the Public Protector is required to respect and assist courts by providing a “frank and candid account of her conduct”

on oath.[4] For that reason, he adds, that the Public Protector’s filing of her purported rule 6(5)(d)(iii) notice is clearly not competent. The Minister furthermore contends that the filing of a bare Rule 6(5)(d)(iii) notice is untenable, and that it is, in any event

defective, for failing to disclose a competent defense in the circumstances of this case. For these reason, the Minister urges the Court to strike out rule 6(5)(d)(iii) notice with costs on a punitive scale against the Public Protector personally.

[5] The Public Protector, and on the other hand, contends that it is not competent for the Minister to take an exception against a rule

6(5)(d)(iii) notice. She submits that the Minister’s exception must be dismissed with costs on a punitive scale against the Minister personally. It is to the question of the legal competency of the rule 23(1) exception, filed by the Minister of Finance, that I now turn.

Is a rule 65(d)(iii) notice a pleading?

[6] Rule 23(1) of the Uniform Rules of Court provides:

“Exceptions and applications to strike out

(1) Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party may, within the period allowed for filing any subsequent pleading, deliver an exception thereto and may set it down for hearing in terms of paragraph (f) of subrule (5) of rule (6): Provided that where a party intends to take an exception that a pleading is vague and embarrassing he shall within the period allowed as aforesaid by notice afford his opponent an opportunity of removing the cause of complaint within 15 days: Provided further that the party excepting shall within ten days from the date on which a reply to such notice is received or from the date on which such reply is due, deliver his exception.”

[7] Herbstein & Van Winsen[5] state that the term pleading in our law is used in a restricted sense and does not include documents such as petitions, notices of motion, affidavits, simple summons, provisional sentence summons or writs of arrest. However, in Theron and Another NNO v Loubser NO and Others[6] the Supreme Court of Appeal held that in motion proceedings the affidavits constitute not only the evidence, but also the pleadings.

The Constitutional Court endorsed this approach in Kham and Others v Electoral Commission and Another[7].

[8] It is contended on behalf of the Public Protector that because a notice is not a pleading as contemplated in rule 23, the Minister e 23(1) exception to the points of law raised in her rule 6(5)(d)(iii) notice is bad in law and falls to be dismissed.

[9] The Public Protector relies for support on the decision of Rademeyer v Ideal CFD Financial Services (Pty) Ltd[8] where the court held as follows:

“The first paragraph of the notice states that the Plaintiff ‘exception to the “Defendant’s Notice in terms of Rule 30 (2)” dated 15 January 2009’. It purports to be a notice of exception in terms of rule 23(1) and 23(2). It is incompetent. An exception may only be taken to a pleading that is either ‘vague and embarrassing or lacks averments which are necessary to sustain an action or defence’. In this instance it directed at a notice and not a pleading, that notice is not vague or embarrassing in any manner and it has nothing to do with ‘an action or defence’ as it is aimed at rectifying an irregular proceeding. The plaintiff’s so-called exception must therefore fail with costs.”

[10] The Public Protector also seeks support for this argument in WP Fresh Distributors (Pty) Ltd v Klaaste5 where it was held that rule 23(1) does not apply in motion proceedings and that an exception in terms of Rule 23(1) that is taken in an application proceeding is bad in law. The court found support for this in rule 6(14) which expressly states that rules 10,

11, 12, 13 and 14 apply mutatis mutandis to all applications. That rule 23 is not listed in rule 6(14) as applying to all applications, confirmed for the court the correctness of its conclusion that rule 23 does not apply to motion proceedings [9]

[11] The Public Protector, likewise, relies for support on Chauke v Safety and Security Sectoral Bargaining Council and Others[10] where it was held that an exception in motion proceedings is not competent and bad in law. This, according to the Labour Court, is because an exception contemplated by rule 23 is directed at a pleading. The Labour Court accordingly found that the exception was not competent on the basis that it was directed at the affidavit filed in support of a review application.[11]

[12] The question for determination is whether a rule 6(5)(d(iii) notice is a pleading. In order to answer this question, I must first deal with two antecedent questions which are what is a pleading and what is its purpose? According to Herbstein & Van Winsen, the term “Pleading” is used in civil cases “to denote a document in which a party to proceedings in a court of first instance is required by law to formulate in writing his case or part of his case in preparation for a hearing”.[12] Its purpose is, amongst other things, to define the issues for the other party and the court. A party is obliged to allege in the

pleadings the material facts upon which it relies so as to enable the other party to prepare for trial knowing what evidence is required to support his or her case, and to meet that of his opponent.[13] A fundamental rule of a pleading is that it should state facts and not law. However, once a party has pleaded the material facts that are relied on for the cause of action, this should be followed by conclusions of law, which the pleader claims follows from the material facts.[14] It is not permissible to plead a conclusion of law without pleading the material facts giving rise to it.[15]

[13] What, by way of comparison, is a rule 6(5)(d)(iii) notice? In terms of this rule, where a respondent who opposes the relief sought in the notice of motion, intends to rely on a point of law only, he or she must deliver a notice to that effect in lieu of an answering affidavit setting out the point or question of law.[16] A rule 6(5)(d)(iii) notice may, however, be filed together with or without the answering affidavit. In instances, such as we have here, where the respondent elects not to file an answering affidavit in response to the applicant’s allegations , but to take a legal point only by way of a rule 6(5)(d)(iii) notice, a court may hear the case without giving the respondent an opportunity to file an answering affidavit on the merits. Alternatively, it may grant a postponement to enable the respondent to prepare and file an answering affidavit. This approach is, however, discouraged as it is likely to give rise to an undue protraction of the proceedings and a piecemeal handling of the matter.[17]

[14] Once a respondent intending to rely on a point of law only, delivers a rule 6(5)(d)(iii) notice of his or her intention to do so to the applicant, then the matter is ready to be set down for hearing in court. The applicant will have an opportunity, at the hearing, to present argument on, inter alia, why the law points raised, in the notice, fail to establish a defence capable of being adjudicated without a factual basis (supported by evidence) being put up by the respondent in an answering affidavit.

[15] Viewed in its proper context, a rule 6(5)(d)(iii) notice is not a pleading as contemplated in Rule 23(1). It is merely a notice in which the respondent sets forth its intention to rely on point/s of law that are dispositive of the dispute between the parties. The respondent is merely required to set out, in the rule 6(5)(d)(iii) notice, the points of law that it seeks to rely on that will be dispositive of the issues for determination in the matter. Since a rule 6(5)(d)(iii) notice is neither a pleading nor an affidavit, it is impermissible for the respondent to plead facts or produce evidence in support of the law points raised, which should have been placed before the court in an answering affidavit. [18] In the absence of an answering affidavit dealing with the merits of the dispute, the court has a discretion to simply deal with the matter on the points of law raised and the evidence in the founding affidavit. If the respondent relies exclusively on the notice in terms of rule 6(5)(d)(iii), as the Public Protector does in this case, the allegations in the founding affidavit must be taken as established facts by the court.[19]

[16] To sum up, the rule 6(5)(d)(iii) notice filed by the Public Protector is not a pleading as contemplated in rule 23. It was, therefore, not competent for the Minister to raise an exception against it in terms of rule 23(1). Once the rule 6(5)(d)(iii) notice was served on the Minister of Finance, the matter was ready to be set down for hearing before the review court, for it to make a determination on the points of law raised in the notice. In the circumstances, the M e rule 23(1) notice

is bad in law. For these reasons, the exception falls to be dismissed.

Costs

[17] The Public Protector seeks a personal costs order against the Minister of Finance for raising an exception against her rule 6(5)(d)(iii) notice. I am not persuaded that this is an appropriate order to make in the circumstances of this case. The Public Protector did, however, demand that the Minister of Finance withdraw his rule 23(1) notice. Needless to say, he refused to do so. In the circumstances, the imposition of a punitive costs order against the Minister of Finance, on the scale as between attorney and client, is appropriate.

[18] In the result, I make the following order:

1. The application is dismissed.

2. The applicant is ordered to pay the first respondent’s costs on the scale as between attorney and client.

F KATHREE-SETILOANE

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

Counsel for the applicant: J.J. Gauntlett SC QC with F.B. Pelser

Instructed by: The State Attorney

Counsel for the first respondent: V Ngalwana SC with BD Lekokotla

Instructed by: Boqwana Burns Inc

As this application was set down during the lockdown declared under the State of Disaster Regulations, the parties elected that the matter be disposed of without an oral hearing.

Date of Judgment: 31 August 2020

(Handed down electronically by email to parties’ legal representatives and by being uploaded to CaseLines).

[1] Rule 6(15) provides: “The court may on application order to be struck out from any affidavit any matter which is scandalous, vexatious or irrelevant, with an appropriate order as to costs, including costs as between attorney and client. The court shall not grant the application unless it is satisfied that the applicant would be prejudiced in his case if it not be granted.”

[1] Rule 6(15) provides:

“The court may on application order to be struck out from any affidavit any matter which is scandalous, vexatious or irrelevant, with an appropriate order as to costs, including costs as between attorney and client. The court shall not grant the application unless it is satisfied that the applicant would be prejudiced in his case if it not be granted.”

[2]Rule 6(5)(d)(iii) provides: “Any person opposing the grant of an order sought in the notice of motion shall – … (iii) if he intends to raise any question of law only he shall deliver notice of his intention to do so, within the time stated in the preceding sub-paragraph, setting forth such question.”

[2]Rule 6(5)(d)(iii) provides:

“Any person opposing the grant of an order sought in the notice of motion shall –

…

(iii) if he intends to raise any question of law only he shall deliver notice of his intention to do so, within the time stated in the preceding sub-paragraph, setting forth such question.”

[3] The Minister of Finance also filed a notice in terms of rule 6(15) seeking to exclude the documents on which the Public Protector

relies for the points of law she invokes in her defence.

[4] Public Protector v South African Reserve Bank 2019 (9) BCLR 1113 (CC) at para 237.

[5] The Civil Practice of the High Courts of South Africa, 5th Ed., (“Herbstein & Van Winsen”) Vol 1, Juta & Co. Ltd, at p. 558

[6] 2014 (3) SA 323 (SCA) at para 26. See also Transnet Ltd v Rubenstein 2006 (1) SA 591 (SCA) at para 28

[7] Kham and Others v Electoral Commission and Another 2016 (2) SA 338 (CC) at para [46].

[8] Rademeyer v Ideal CFD Financial Services (Pty) Ltd (2655/2008) [2009] ZAECGHC 1 (26 February 2009) at par 9.

[9] WP Fresh Distributors (Pty) Ltd v Klaaste [2013] ZAWCHC 95 par 9.

[10] (2016) 37 ILJ 139 (LC) paras 13, 16 and 18

[11] In Chauke, the Court referred with approval to the decision in WP Fresh Distributors.

[12] Herbstein and Van Winsen at p.558. .

[13] Minister of Safety and Security v Slabbert (2010) 2 All SA 474 (SCA) par 11.

[14] Prinsloo v Woolbrokers Federation Ltd 1955 (2) SA 298 (N) at 299E; Inzinger v Hofmeyr and Others (2010) ZAGPJHC 104 par 26.

[15] Trope and Others v South African Reserve Bank [1993] ZASCA 54; 1993 (3) SA 264 (A) at 273A.

[16] LTC Harms Civil Procedure in the Supreme Court (1990), [Issue 40], para B6-35, B-51 ( Harms ).

[17] Bader v Weston 1967 (1) SA 134 (C) at 136H 137A. Although discouraged, a respondent would only be given the opportunity to file an answering affidavit where the court is satisfied that the respondent was not acting mala fide, where an adequate explanation for the failure to file an affidavit on the merits is given, where demands that the respondent should have further time for the purpose of presenting his case and where the disadvantages to the applicant of a postponement can be compensated by an appropriate order as to costs. See in this regard: Standard Bank of South Africa Ltd v RTS Techniques and Planning (Pty) Ltd 1992 (2) SA 532 (T).

[18] In Minister of Safety and Security v Tembop Recovery CC [2016] ZASCA 52 at para 20.

[19] Boxer Superstores Mthatha and Another v Mbenya 2007 (5) SA 450 (SCA) at 452F G; Absa Bank Ltd v Prochaska t/a Bianca Cara Interiors 2009 (2) SA 512 (D) at 514I-J.