Mthembu v Special Investigating Unit and Another (Leave to Appeal) (21441/20) [2024] ZAGPPHC 865 (30 July 2024)

Mthembu v Special Investigating Unit and Another (Leave to Appeal) (21441/20) [2024] ZAGPPHC 865 (30 July 2024)

The court found that the SIU's report concerning Mr Mthembu was ultra vires and irrational, as it was not connected to the statutory mandate or the scope of the relevant Proclamation. The SIU's powers are confined to investigating matters within the parameters set by its enabling legislation and the specific Proclamation. The report did not relate to entities that had bid for or conducted business with Eskom, and thus fell outside the SIU's mandate. The court held that disciplinary hearings do not constitute legal proceedings as contemplated by section 5(7) of the SIU Act. The SIU's report, although not final or determinative, had a direct impact on Mr Mthembu and was susceptible to...

Citation
[2024] ZAGPPHC 865
Parties
Applicant: Sibongiseni Jerome Mthembu; Respondent: Special Investigating Unit; Respondent: Eskom Holdings SOC Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 July 2024
Case Number
21441/20
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Review Judgment
Outcome
Application for leave to appeal dismissed with costs. Previous costs order amended to reflect costs for one counsel only.
Judges
M A Lukhaimane
Legal Topics
Review of Administrative Action, Principle of Legality, Ultra Vires, Costs Orders, Interpretation of Statutes
Administrative Law Civil Procedure Review of Administrative Action Principle of Legality Ultra Vires Costs Orders Interpretation of Statutes

Case Brief

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Parties

Sibongiseni Jerome Mthembu

Applicant

Special Investigating Unit

Respondent

Eskom Holdings SOC Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Review Judgment

Legal Issues

  1. 1 Whether the SIU's report to Eskom dated 12 November 2019 is reviewable under PAJA or the principle of legality.
  2. 2 Whether the SIU acted ultra vires in issuing the report concerning Mr Mthembu.
  3. 3 Whether section 5(7) of the SIU Act includes disciplinary proceedings as legal proceedings.

Ratio Decidendi

The court found that the SIU's report concerning Mr Mthembu was ultra vires and irrational, as it was not connected to the statutory mandate or the scope of the relevant Proclamation. The SIU's powers are confined to investigating matters within the parameters set by its enabling legislation and the specific Proclamation. The report did not relate to entities that had bid for or conducted business with Eskom, and thus fell outside the SIU's mandate. The court held that disciplinary hearings do not constitute legal proceedings as contemplated by section 5(7) of the SIU Act. The SIU's report, although not final or determinative, had a direct impact on Mr Mthembu and was susceptible to...

Court Disposition

Application for leave to appeal dismissed with costs. Previous costs order amended to reflect costs for one counsel only.

Orders

  • The SIU's application for leave to appeal is dismissed with costs.
  • The order granted on 2 February 2023 is amended to award costs for one counsel only.