Public Protector of South Africa v Chairperson Section 194(1) Committee and Others (Leave to Appeal) (18882/2022) [2023] ZAWCHC 348 (1 June 2023)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No:18882/2022

In the matter between:

THE PUBLIC PROTECTOR OF SOUTH AFRICA Applicant and THE CHAIRPERSON: SECTION 194(1) COMMITTEE First Respondent KEVIN MILEHAM Second Respondent THE SPEAKER OF THE NATIONAL ASSEMBLY Third Respondent ALL POLITICAL PARTIES REPRESENTED IN THE NATIONAL ASSEMBLY Fourth to Seventeenth Respondents

Coram: Allie, Cloete and Savage JJ

Heard: 30 May 2023

Delivered electronically: 1 June 2023

JUDGMENT IN APPLICATIONS FOR LEAVE TO APPEAL AND CONDITIONAL CROSS-APPEALS

THE COURT:

[1] For convenience, the parties are referred to as they were in the court a quo. Before us are an application for leave to appeal by the applicant against the ‘whole of the judgment’ and order delivered electronically on 13 April 2023, as well as conditional applications for leave to cross-appeal by the first[1] and second respondents, as also the fifth respondent, the Democratic Alliance (“DA”), against the costs award. Leave is sought in all instances to the Supreme Court of Appeal.

[2] As far as the application for leave to appeal is concerned we do not intend traversing the myriad grounds relied upon. This is because we are persuaded that there is a reasonable prospect that a higher court would come to a different conclusion on two issues. The first is whether we were correct in finding that, notwithstanding the absence of legal representation for the applicant on the occasions complained of, this was not per se irremediable harm which vitiated the entire s194 enquiry, and we were thus entitled to consider the matter on the applicable principles pertaining to in medias res.

[3] The second is that we did not directly deal with the declaratory relief contained in prayer 5 of the notice of motion, given its formulation therein and our understanding of the arguments advanced on this score. We accept that we may have erred.

[4] We are also persuaded that the matter falls within s 17(1)(a)(ii) of the Superior Courts Act,[2] in particular that ‘there is some other compelling reason why the appeal should be heard’. It is of considerable importance to the parties as well as the public at large given the litigation history in relation to the s194 enquiry; the effect on the pockets of taxpayers; and how the order of the Constitutional Court[3] in relation to legal representation falls to be interpreted (not only for the applicant but others who may find themselves subject to a s194 enquiry and the parliamentary rules pertaining thereto). Similar considerations apply to the conditional cross-appeals.

[5] It is however necessary to deal with one of the grounds advanced by the first respondent, formulated as follows in his notice of application for leave to appeal:

‘3. It was common cause that the President suspended Adv Mkhwebane as the Public Protector before she instituted these proceedings. Accordingly, the powers of the Public Protector, including the power to institute litigation in the name of the office – had already vested in the Acting Public Protector, in terms of section 2A(7) of the Public Protector Act, 1994.

4. Adv Mkhwebane does not allege that the Acting Public Protector, or a duly delegated person in the Office of the Public Protector, authorised the institution of this application on behalf of the institution of the Public Protector.

5. The Full Court overlooked the fact that Adv Mkhwebane’s suspension deprived her of the power to bring legal proceedings in the name of the institution of the Public Protector when making the costs order.

6. The Full Court, therefore, materially misdirected itself in law by ordering the institution of the Public Protector – and not Adv Mkhwebane personally – to pay the respondents’ costs.

[6] It was fairly conceded by counsel for the first respondent that this was not contained in his papers, in the heads of argument filed on his behalf, or addressed in oral argument at the hearing. It is thus a new point raised for the first time on appeal. In Road Accident Fund v Mothupi[4] it was held:

‘[30] Subject to what is said below, a Court will not allow a new point to be raised for the first time on appeal unless it was covered by the pleadings… A party will not be permitted to do so if it would be unfair to his opponent… It would be unfair to the other party if the new point was not fully canvassed or investigated at the trial… In the result it appears to me that the proposed amendment opened up entirely new fields of enquiry which were not properly explored before the trial Court…’

[7] However we are mindful of what the same court stated in Thompson v South African Broadcasting Corporation[5] (which of course also applies to the grounds of appeal with which we have not specifically dealt):

‘[7] The Court [i.e. the Supreme Court of Appeal] is entitled to base its judgment and to make findings in relation to any matter flowing fairly from the record, the judgment, the heads of argument or the oral argument itself.’

[8] In the result the following order is made:

1. The applicant’s application for leave to appeal to the Supreme Court of Appeal is granted;

2. The first respondent’s conditional application for leave to cross-appeal to the Supreme Court of Appeal is granted;

3. The conditional applications for leave to cross-appeal by the second and fifth respondents to the Supreme Court of Appeal are granted; and

4. Costs shall be costs in the appeal.

R ALLIE

JUDGE OF THE HIGH COURT

J I CLOETE

K M SAVAGE

APPEARANCES

Applicant:

D Mpofu SC with H Matlhape

Instructed by Ramushu Mashile Twala Inc.

First Respondent:

I Jamie SC with A Nacerodien and U Naidoo

Instructed by the State Attorney

Second and Fifth Respondents: M Bishop

Instructed by Minde Schapiro & Smith Inc.

[1] Counsel for the first respondent informed us during argument that only conditional leave to appeal is sought.

[2] No 10 of 2013.

[3] Speaker of the National Assembly v Public Protector and Others 2022 (3) SA 1 (CC).

[4] 2000 (4) SA 38 (SCA) at para [30].

[5] [2000] ZASCA 76; 2001 (3) SA 746 (SCA) at para [7]; see also Leeuw v First National Bank Ltd 2010 (3) SA 410 (SCA) at para [5].