Rabie and Another v Public Protector and Another; Rabie v Mkhwebane and Others (56029/2018; 83971/2019) [2021] ZAGPPHC 501 (3 August 2021)

Rabie and Another v Public Protector and Another; Rabie v Mkhwebane and Others (56029/2018; 83971/2019) [2021] ZAGPPHC 501 (3 August 2021)

The review application was dismissed due to non-compliance with section 7(1) of PAJA, as Rabie instituted proceedings more than four years after becoming aware of the Public Protector's report and failed to seek condonation for the delay. The declaratory relief sought was legally untenable, as Rabie failed to specify which statutory duties were breached and did not provide evidence to support allegations of extortion, theft, or criminality. Rabie had exhausted his remedies regarding the Public Protector's investigation, and the court found no basis for further intervention. The relief sought against the SIU and NPA was dismissed as the court lacks the power to direct those bodies to...

Citation
[2021] ZAGPPHC 501
Parties
Applicant: Virgil Humphrey Rabie; Applicant: Anthea Berenice Rabie; Respondent: The Public Protector: Advocate B Mkhwebane; Respondent: Ernst and Young Advisory Services (Pty) Ltd; Intervening Respondent: Ernst and Young Advisory Services (Pty) Ltd; Respondent: Advocate Busisiwe Mkhwebane (The Public Protector); Respondent: Mr John Steenhuisen (The Democratic Alliance); Respondent: Minister Pravin Gordhan (Department of Public Enterprises); Respondent: Advocate Shamila Batohi (National Prosecuting Authority); Respondent: The South African Police Service – SAPS (The Hawks); Respondent: The Special Investigating Unit (SIU) - Dr Wells/Mr Neave; Respondent: The Law Society of the Northern Provinces; Respondent: Ernest and Young (EY); Respondent: Mr Brian Dames (Previous CEO at Eskom)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 August 2021
Case Number
56029/2018; 83971/2019
Procedural Posture
Review Application / Judgment After Consolidation of Review and Declaratory Applications
Outcome
Both the review and declaratory applications are dismissed with costs.
Judges
Janse van Nieuwenhuizen
Legal Topics
Promotion of Administrative Justice Act, Public Protector Act, Judicial Review Delay, Costs Orders, Mandatory Interdict
Administrative Law Civil Procedure Promotion of Administrative Justice Act Public Protector Act Judicial Review Delay Costs Orders Mandatory Interdict

Case Brief

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Parties

Virgil Humphrey Rabie

Applicant

Anthea Berenice Rabie

Applicant

The Public Protector: Advocate B Mkhwebane

Respondent

Ernst and Young Advisory Services (Pty) Ltd

Respondent

Ernst and Young Advisory Services (Pty) Ltd

Intervening Respondent

Advocate Busisiwe Mkhwebane (The Public Protector)

Respondent

Mr John Steenhuisen (The Democratic Alliance)

Respondent

Minister Pravin Gordhan (Department of Public Enterprises)

Respondent

Advocate Shamila Batohi (National Prosecuting Authority)

Respondent

The South African Police Service – SAPS (The Hawks)

Respondent

The Special Investigating Unit (SIU) - Dr Wells/Mr Neave

Respondent

The Law Society of the Northern Provinces

Respondent

Ernest and Young (EY)

Respondent

Mr Brian Dames (Previous CEO at Eskom)

Respondent

Procedural Posture

Review Application / Judgment After Consolidation of Review and Declaratory Applications

Legal Issues

  1. 1 Whether the review application against the Public Protector's report was instituted within the time limits prescribed by section 7(1) of PAJA.
  2. 2 Whether the Public Protector failed in its statutory and constitutional duties in investigating complaints against Eskom and its agents.
  3. 3 Whether the declaratory and mandatory relief sought by Rabie is legally tenable and supported by evidence.

Ratio Decidendi

The review application was dismissed due to non-compliance with section 7(1) of PAJA, as Rabie instituted proceedings more than four years after becoming aware of the Public Protector's report and failed to seek condonation for the delay. The declaratory relief sought was legally untenable, as Rabie failed to specify which statutory duties were breached and did not provide evidence to support allegations of extortion, theft, or criminality. Rabie had exhausted his remedies regarding the Public Protector's investigation, and the court found no basis for further intervention. The relief sought against the SIU and NPA was dismissed as the court lacks the power to direct those bodies to...

Court Disposition

Both the review and declaratory applications are dismissed with costs.

Orders

  • The application under case number 56029/2018 is dismissed with costs, including the costs of two counsel.
  • The application under case number 83971/2019 is dismissed with costs on an attorney and client scale, including the costs of two counsel.