Phiyega v Farlam N.O and Others (49521/2016) [2021] ZAGPPHC 340 (30 May 2021)

Phiyega v Farlam N.O and Others (49521/2016) [2021] ZAGPPHC 340 (30 May 2021)

The court found that the applicant's review application was fatally defective on three grounds: unreasonable delay, mootness, and peremption. The delay in instituting the review was substantial and inadequately explained, especially as the applicant's tenure had expired and her participation in the Claassen Board of Inquiry rendered the relief sought academic. The Claassen Board's findings overtook the Marikana Commission's recommendations, confirming or superseding the impugned findings. The applicant's submission to the Claassen Board process constituted peremption, barring her from contesting the jurisdiction or findings of the Commission. The court held that no subsisting prejudice or...

Citation
[2021] ZAGPPHC 340
Parties
Applicant: General Victoria Mangwashi Phiyega; Respondent: Judge I.G Farlam (N.O); Respondent: Advocate P.D Hemraj SC (N.O); Respondent: Advocate B.R Tokota SC (N.O); Respondent: President of the Republic of South Africa
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 May 2021
Case Number
49521/2016
Procedural Posture
Review Application / Judgment
Outcome
Application for review dismissed with costs, including costs of two counsel where so employed.
Judges
Ranchod
Legal Topics
Judicial Review of Commission, Mootness, Delay in Review, Peremption, Legality Review, Rationality Review
Administrative Law Civil Procedure Judicial Review of Commission Mootness Delay in Review Peremption Legality Review Rationality Review

Case Brief

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Parties

General Victoria Mangwashi Phiyega

Applicant

Judge I.G Farlam (N.O)

Respondent

Advocate P.D Hemraj SC (N.O)

Respondent

Advocate B.R Tokota SC (N.O)

Respondent

President of the Republic of South Africa

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of affidavits.
  2. 2 Whether the findings and recommendations of the Marikana Commission were irrational and should be set aside.
  3. 3 Whether the Commission's adoption of evidence leaders' arguments constituted a failure to apply its mind independently.

Ratio Decidendi

The court found that the applicant's review application was fatally defective on three grounds: unreasonable delay, mootness, and peremption. The delay in instituting the review was substantial and inadequately explained, especially as the applicant's tenure had expired and her participation in the Claassen Board of Inquiry rendered the relief sought academic. The Claassen Board's findings overtook the Marikana Commission's recommendations, confirming or superseding the impugned findings. The applicant's submission to the Claassen Board process constituted peremption, barring her from contesting the jurisdiction or findings of the Commission. The court held that no subsisting prejudice or...

Court Disposition

Application for review dismissed with costs, including costs of two counsel where so employed.

Orders

  • Condonation is granted for the late filing of the fourth respondent's answering affidavit.
  • Condonation is granted for the late filing of the applicant's replying affidavit.