Msibi v Office of the Public Protector and Others (75594/2019) [2022] ZAGPPHC 37 (26 January 2022)

Msibi v Office of the Public Protector and Others (75594/2019) [2022] ZAGPPHC 37 (26 January 2022)

The court found that the Public Protector failed to comply with her constitutional and statutory obligations by not affording the applicant a hearing during the course of her investigation and prior to releasing preliminary findings. Section 7(9)(a) of the Public Protector Act, interpreted in light of section 33(1)...

Source-derived case information.

Citation
[2022] ZAGPPHC 37
Parties
Applicant: Makhosini Msibi; Respondent: Office of the Public Protector; Respondent: Busisiwe Mkhwebane; Respondent: Road Traffic Management Corporation
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 January 2022
Case Number
75594/2019
Procedural Posture
Review Application / Judgment on Rule 53 Review Application Following Urgent Interim Relief
Outcome
Application granted. The Public Protector's report and remedial action are reviewed and set aside in their entirety.
Judges
Vuma
Legal Topics
Procedural Fairness, Remedial Action, Audi Alteram Partem, Promotion of Administrative Justice Act, Maladministration, Principle of Legality
Administrative Law Constitutional Law Procedural Fairness Remedial Action Audi Alteram Partem Promotion of Administrative Justice Act Maladministration Principle of Legality

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Parties

Makhosini Msibi

Applicant

Office of the Public Protector

Respondent

Busisiwe Mkhwebane

Respondent

Road Traffic Management Corporation

Respondent

Procedural Posture

Review Application / Judgment on Rule 53 Review Application Following Urgent Interim Relief

Legal Issues

  1. 1 Whether the Public Protector violated the applicant's right to procedural fairness by failing to hear him prior to releasing preliminary findings.
  2. 2 Whether the Public Protector was required to disclose proposed remedial action to the applicant before issuing the report.
  3. 3 Whether the Public Protector's omission to grant the applicant an opportunity to make representations renders the entire report reviewable or is severable.

Ratio Decidendi

The court found that the Public Protector failed to comply with her constitutional and statutory obligations by not affording the applicant a hearing during the course of her investigation and prior to releasing preliminary findings. Section 7(9)(a) of the Public Protector Act, interpreted in light of section 33(1) of the Constitution and principles of natural justice, creates an obligation to hear an implicated person before adverse findings are made. The Public Protector's process was irrational and unlawful, as she only invited the applicant to respond after preliminary findings were released, which contravened both the Act and the Constitution. The omission to disclose the proposed...

Court Disposition

Application granted. The Public Protector's report and remedial action are reviewed and set aside in their entirety.

Orders

  • The remedial action directed by the Public Protector in paragraph 7 of Report No. 69 of 2019/20 dated 16 September 2019 is reviewed and set aside in its entirety.
  • The findings in the Report related to the appointment of Ms. Julia Manamela, overtime payments to bodyguards, and appointment of lawyers and legal firms are reviewed and set aside.