Public Protector v Minister of Police and Others (66073/2018) [2022] ZAGPPHC 343 (13 May 2022)

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 66073/2018

REPORTABLE: NO.

OF INTEREST TO OTHER JUDGES: NO

REVISED.

DATE: 13 MAY 2022

In the matter between:

THE PUBLIC PROTECTOR

Applicant

And

THE MINISTER OF POLICE

First Respondent

THE NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICES

Second Respondent

LESLEY STUTA

Third Respondent

THABISO ZULU

Fourth Respondent

THE PRESIDENT OF THE REPUBLIC

OF SOUTH AFRICA

Fifth Respondent

THE MINISTER OF JUSTICE AND

CORRECTIONAL SERVICES

Sixth Respondent

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS

Seventh Respondent

Summary: Rescission of judgment – of an order in a review application – not granted by default – erroneously sought? – mistake common to parties? – granted in absence?

Rescission of Judgment – Rules 32(1)(b), 42(1)(a) or 42(1)(c) – failure by applicant to establish any of the requirements for such rescission.

ORDER

The application is dismissed with costs on the scale as between attorney and client, including costs of senior and junior counsel where so employed by the first, second and fifth respondents.

J U D G M E N T

This matter has been heard in open court and is otherwise disposed of in terms of the Directives of the Judge President of this Division. The judgment and order are accordingly published and distributed electronically.

DAVIS, J

[1] Introduction

On 10 August 2018 the Public Protector delivered a report wherein she made adverse findings against the Minister of Police (the Minister) and the South African Police Service (SAPS) for allegedly having failed to provide protection to certain witnesses in respect of corrupt activities in the Umzimkhulu Local Municipality. On 3 June 2020 Hughes, J (as she then was) granted an order reviewing and setting aside the Public Protector’s report and the remedial action directed by her. The Public Protector, in this application, applies for the rescission of the order of Hughes J on the basis that it was either granted by default (as contemplated in Rule 32(1)(b)) or that it was erroneously sought and granted in her absence (as contemplated in Rule 42(1)(a)) or that it was granted based on a mistake common to the parties (as contemplated in Rule 42(1)(c) of the Uniform Rules of Court).

[2] The Public Protector’s report of 10 August 2018:

2.1 The abovementioned report was titled “Report on investigation into allegations of undue delay, gross negligence, improper conduct and mal-administration by the Minister of Police and South African Police Service for failing to provide the whistle-blowers with security protection at the State’s expense following the exposé of allegations of mal-administration, corruption and the unconscionable expenditure of public funds by the Umzimkhulu Local Municipality in connection with the restoration of the heritage of the dilapidated Umzimkhulu Memorial Hall”.

2.2 Apart from the already loaded content of the title of the report, the Public Protector, in her own words, made the following adverse findings against certain of the respondents in this application, being the Minister (first respondent) and the SAPS (represented by the National Commissioner as second respondent):

“1. The Minister and the SAPS have failed to provide [the witness] with protection at the State’s expense following threats to their lives as a result of the exposé of alleged corrupt activities in the Umzimkhulu Local Municiaplity pertaining to the refurbishment of the Umzimkhulu memorial hall;

2. The Minister and the SAPS have failed to provide my office with the Security Threat Assessment Report conducted …;

3. The Minister and the SAPS’s conduct in dealing with my request to provide protection to the two whistle-blowers is grossly negligent;

4. The Minister and the SAPS’s conduct constitute improper conduct as envisaged in section 182(1) of the Constitution and undue delay, gross negligence and mal-administration as envisaged in section 6(4) of the Public Protector Act”.

2.3 Pursuant to the above findings, the Public Protector issued a number of remedial action directives. Firstly, she directed the President of the Republic of South Africa (the President), being the fifth respondent in these proceedings, to “… take urgent and appropriate steps to reprimand the Minister … for his lapse in judgment …”. Secondly she directed the Minister, not only to furnish her with a copy of the Security Threat Assessment, but to implement it and to provide the witnesses with protection at State expense and issue them with an apology. Thirdly she issued directives against the National Commissioner to adopt certain Standard Operating Procedures.

[3] The review application:

3.1 On 10 September 2018 the Minister and the National Commissioner launched an application in this court for the review and setting aside of the Public Protector’s report and the remedial action directed by her.

3.2 The basis for the review application was that the Public Protector had not taken into account that the Protection and Security Services of the SAPS (the PSS), which is the only unit of the SAPS that provides protection and security services, is constrained by law and by Cabinet Memorandum 1A of 2004 to (only) protect those occupying senior positions in the executive, legislature and judiciary and the PSS’s mandate does not extend to providing similar protection to ordinary citizens and whistle-blowers. Apart from the lack of authority and a mandate to do so, the PSS has neither the financial or human resources to extend such protection.

3.3 Instead, the two witnesses qualified for protection under the Witness Protection Act, 112 of 1998. A witness protection office with a budget had been created by this Act, specifically to protect persons such as the two whistle-blowers in question.

3.4 The Minister and SAPS, by way of an affidavit by the Brigadier in command of the PSS, commended the Public Protector for investigating the allegations of corruption at the Umzimkhulu Local Municipality. However, it appeared that during an interview with the two witnesses by the Public Protector, they expressed a fear for their lives, being whistle-blowers. At her own instance and, relying on media reports, the Public Protector thereupon decided to investigate the Minister and the SAPS for failing to provide protection for the witnesses. She requested the former Minister and Advocate Bongani Bongo (then Minister of State Security) to conduct a security threat assessment. Pursuant to this, the State Security Agency (the SSA) completed a report to the Public Protector, inter alia recommending to her that the two witnesses be “… protected by individual private protectors”.

3.5 The aforementioned Brigadier pointed out that, due to various reasons, meetings between the Minister and the Public Protector never realized, either due to operational reasons or, in one scheduled instance, due to the Public Protector’s absence from the country. The Minister has, however, in public radio media indicated the availability of witness protection for the whistle-blowers in question. In terms of section 7 of the Witness Protection Act, any witness whose safety is threatened may apply to be placed in a witness protection program. This was indeed facilitated by the Minister’s legal advisor and the then National Director of Public Prosecutions on 18 June 2018, a date which pre-dates the Public Protector’s report. The witness protection offer was, however, rejected by one of the witnesses who insisted on PSS protection.

3.6 Upon receipt of the Public Protector’s report, the Minister wrote to her to advise her that implementation of the remedial action by the SAPS would be contrary to law and that the report would be taken on review.

3.7 The Public Protector, upon receipt of the review application, elected on 11 October 2018 in writing to abide the Court’s decision. In her current application for rescission, she states that the subsequently “changed her stance”. The reason for this, so she stated, was an allegation that the PSS had previously extended protection to Dr Nkosazana Dlamini Zuma after the end of her term as African Union Chairperson and while she was not a member of the legislature or the executive and prior to her becoming the Minister of Co-Operative Governance and Traditional Affairs. This change in stance caused the Public Protector to deliver an answering affidavit in the review application and to instruct attorneys to represent her, who briefed counsel for the same purpose.

3.8 Apart from her expressed wish to appear to protect witnesses and whistle-blowers, the Public Protector’s opposition to the review application was predicated on the following extract from her answering affidavit:

“The argument advanced by the applicants in the founding affidavit that the Minister or SAPS is not responsible for security protection of private citizens or witnesses is of no moment. The issue is not whether the SAPS is unable to offer protection because of absence of legislation to that effect. The issue is whether the State is exonerated from providing protection to a private citizen through

SAPS if there is no legislative regime or policy to that effect. The government of the Republic of South Africa is unitary in nature”.

[4] The witness’ application

4.1 Prior to the hearing of the review application, the witness who had previously refused the protection arranged by the Minister’s legal advisor, (the Public Protector contends it was the other witnesses, but this matters not as the principles in question apply to both witnesses equally) launched an urgent application in this court for an order to compel the SAPS to provide him with private security at State expense. This application was premised on the fulfilment of a Constitutional obligation as envisaged in section 205(3) of the Constitution. This section inter alia prescribed one of the “… objects of the police service … to (be) … to protect and secure the inhabitants of the Republic and their property …”. As an alternative the witness sought protection under the Witness Protection Act.