Open Secrets and Another v Minister of Finance and Others (55493/2020) [2021] ZAGPPHC 570 (13 September 2021)

Open Secrets and Another v Minister of Finance and Others (55493/2020) [2021] ZAGPPHC 570 (13 September 2021)

The Court found that the applicants' challenge to the regulations was procedurally and substantively flawed. The applicants failed to bring their application within the 180-day period required by PAJA and did not seek condonation. The attempt to frame the relief as a declarator did not circumvent the requirements of PAJA, as established in relevant case law. The Minister did not unlawfully delegate his appointment powers; the shortlisting panel only made recommendations, and the Minister retained the final decision-making authority. The regulations were not vague, as they provided sufficient guidance and constraints on the shortlisting panel's procedures. Constitutional values do not...

Citation
[2021] ZAGPPHC 570
Parties
Applicant: Open Secrets; Applicant: Unpaid Benefits Campaign; Respondent: Minister of Finance; Respondent: Ismail Momoniant N.O; Respondent: Fundi Tshazibana N.O; Respondent: Thezi Mabuza N.O; Respondent: Deon Rossouw N.O; Respondent: Sizwe Nxasana; Respondent: Financial Sector Conduct Authority
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 September 2021
Case Number
55493/2020
Procedural Posture
Review Application / Final Judgment on Merits
Outcome
Application dismissed; no order as to costs.
Judges
Raulinga, Baqwa, Sardiwalla
Legal Topics
Delegation of Statutory Powers, Doctrine of Vagueness, Subsidiarity Principle, Public Participation, Judicial Review Under Paja
Administrative Law Constitutional Law Delegation of Statutory Powers Doctrine of Vagueness Subsidiarity Principle Public Participation Judicial Review Under Paja

Case Brief

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Parties

Open Secrets

Applicant

Unpaid Benefits Campaign

Applicant

Minister of Finance

Respondent

Ismail Momoniant N.O

Respondent

Fundi Tshazibana N.O

Respondent

Thezi Mabuza N.O

Respondent

Deon Rossouw N.O

Respondent

Sizwe Nxasana

Respondent

Financial Sector Conduct Authority

Respondent

Procedural Posture

Review Application / Final Judgment on Merits

Legal Issues

  1. 1 Whether the regulations promulgated under section 61(1) of the FSCA Act are unlawful for failing to provide for openness and transparency in the appointment process of the FSCA Commissioner and Deputy Commissioner.
  2. 2 Whether the regulations unlawfully exclude public and media access to interviews of shortlisted candidates.
  3. 3 Whether the Minister of Finance unlawfully delegated his appointment powers to the shortlisting panel, and whether such delegation is ultra vires or irrational.

Ratio Decidendi

The Court found that the applicants' challenge to the regulations was procedurally and substantively flawed. The applicants failed to bring their application within the 180-day period required by PAJA and did not seek condonation. The attempt to frame the relief as a declarator did not circumvent the requirements of PAJA, as established in relevant case law. The Minister did not unlawfully delegate his appointment powers; the shortlisting panel only made recommendations, and the Minister retained the final decision-making authority. The regulations were not vague, as they provided sufficient guidance and constraints on the shortlisting panel's procedures. Constitutional values do not...

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application is dismissed.
  • There is no order of costs.