National Empowerment Fund v Public Protector and Others (12349/15) [2017] ZAGPPHC 610 (22 September 2017)

National Empowerment Fund v Public Protector and Others (12349/15) [2017] ZAGPPHC 610 (22 September 2017)

The court found that the Public Protector's report was based on material errors of fact and law, particularly in treating multiple distinct funding applications as a single application and considering events post-complaint. The applicant processed the applications within reasonable timeframes and provided cogent reasons for refusal. The criticism regarding the timing of due diligence investigations was unfounded, as conducting such investigations upfront would be impractical and unnecessarily burdensome. The recommendations for apology and payment of 'sorry money' were ultra vires, irrational, and not supported by statutory authority. The Public Protector misconstrued its powers and the...

Citation
[2017] ZAGPPHC 610
Parties
Applicant: National Empowerment Fund; Respondent: Public Protector; Respondent: Naomi Ngwenya; Respondent: Best Care Medical Supplies CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 September 2017
Case Number
12349/15
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The Public Protector's report and recommendations are reviewed and set aside.
Judges
Van der Westhuizen
Legal Topics
Maladministration, Review of Administrative Action, Public Protector Act, Due Diligence, Remedial Action, Costs Order
Administrative Law Civil Procedure Maladministration Review of Administrative Action Public Protector Act Due Diligence Remedial Action Costs Order

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Parties

National Empowerment Fund

Applicant

Public Protector

Respondent

Naomi Ngwenya

Respondent

Best Care Medical Supplies CC

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant's conduct in processing funding applications constituted maladministration or improper conduct as envisaged in the Public Protector Act and the Constitution.
  2. 2 Whether there was undue delay in processing the second/third respondent's applications for funding.
  3. 3 Whether the recommendations made by the Public Protector, including the payment of 'sorry money' and apology, were lawful and rational.

Ratio Decidendi

The court found that the Public Protector's report was based on material errors of fact and law, particularly in treating multiple distinct funding applications as a single application and considering events post-complaint. The applicant processed the applications within reasonable timeframes and provided cogent reasons for refusal. The criticism regarding the timing of due diligence investigations was unfounded, as conducting such investigations upfront would be impractical and unnecessarily burdensome. The recommendations for apology and payment of 'sorry money' were ultra vires, irrational, and not supported by statutory authority. The Public Protector misconstrued its powers and the...

Court Disposition

Application granted. The Public Protector's report and recommendations are reviewed and set aside.

Orders

  • The late filing of the applicant’s supplementary and replying affidavits is condoned.
  • The Public Protector's Report titled 'Stringed Along' (Report No 5 of 2014/15) is reviewed and set aside.