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South Africa decisions
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Air Chefs Soc Limited v Public Protector of Republic of South Africa & Others (31083-2020) [2024] ZAGPJHC 178 (29 February 2024)
The High Court refused leave to appeal after dismissing review proceedings and a counter-application challenging the Public Protector’s remedial action.
Public Protector South Africa v Commissioner for the South African Revenue Service (84074/19) [2021] ZAGPPHC 467 (15 July 2021)
The High Court refused condonation and leave to appeal, finding the Public Protector had no reasonable prospects of success on the SARS taxpayer-information issue.
Public Protector and Others v President of the Republic of South Africa and Others (CCT 62/20) [2021] ZACC 19; 2021 (9) BCLR 929 (CC); 2021 (6) SA 37 (CC) (1 July 2021)
The Constitutional Court held that the Public Protector misconstrued the Executive Ethics Code by equating inadvertent misleading with wilful conduct, which is not supported by the Code’s wording. There was no evidence that the President personally benefitted from the CR17 campaign donations, and thus no duty to disclose arose under the Code. The Public Protector exceeded her jurisdiction by investigating matters not covered by the complaints and by relying on evidence not disclosed to the President, violating the audi alteram partem principle. The remedial actions taken were found to be unla…
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Van Rooyen v Office of the Public Protector and Others (44020/2018) [2021] ZAGPPHC 170 (29 March 2021)
The court found that the Public Protector's investigation commenced from an incorrect premise, focusing on a period not relevant to the parliamentary question posed to the applicant. The complaint related to events prior to the applicant's appointment as Minister of Finance, while the parliamentary question concerned conduct after taking office. The applicant's response was confined to his official capacity and the relevant period, and there was no evidence that he deliberately misled Parliament. The Public Protector failed to differentiate between the periods and relied on irrelevant evidenc…
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Public Protector v Commissioner for the South African Revenue Service and Others (CCT63/20) [2020] ZACC 28; 2021 (5) BCLR 522 (CC); 2022 (1) SA 340 (CC); 83 SATC 313 (15 December 2020)
The Constitutional Court held that the Public Protector's subpoena powers under the Public Protector Act do not override the confidentiality regime of the Tax Administration Act. Section 69(1) of the Tax Administration Act imposes a clear prohibition on the disclosure of taxpayer information, and the exceptions provided do not include compliance with a Public Protector subpoena. The Public Protector did not bring a direct constitutional challenge to the validity of section 69(1), and therefore cannot obtain relief that would effectively set aside the statutory prohibition. The Court found no…
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Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others (CCT 232/19; CCT 233/19) [2020] ZACC 10; 2020 (8) BCLR 916 (CC); 2020 (6) SA 325 (CC) (29 May 2020)
The Constitutional Court held that the test for interim interdicts against the Public Protector is the established Setlogelo test as adapted in OUTA, which is sufficiently flexible to accommodate the constitutional role and powers of the Public Protector. There is no basis for a stricter test. The interim interdict granted by the High Court did not undermine the Public Protector's effectiveness or accessibility, as her powers had already been exercised and the reports published. The applications for direct leave to appeal on the merits were dismissed due to lack of prospects of success and be…
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Commissioner of the South African Revenue Service v Public Protector and Others (84074/19) [2020] ZAGPPHC 33; [2020] 2 All SA 427 (GP); 2020 (4) SA 133 (GP); 82 SATC 279 (23 March 2020)
The court held that SARS officials are both permitted and required by law to withhold taxpayer information from the Public Protector under the 'just cause' proviso in section 11(3) of the Public Protector Act, read with section 69(1) of the Tax Administration Act. The Public Protector's subpoena powers do not extend to taxpayer information, as her powers are regulated and limited by national legislation. The Public Protector acted unreasonably, arbitrarily, and in bad faith by ignoring legal advice, failing to seek a court order, and insisting on disclosure contrary to statutory prohibitions.…
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Public Protector of the Republic of South Africa v Minister of Water and Sanitation and Another (27609/2019) [2019] ZAGPPHC 645 (16 October 2019)
The court held that the interim order granted on 6 May 2019 is not appealable, as it is interim in nature, susceptible to variation, and does not have final effect. The interests of justice standard, as established by the Constitutional Court, does not favour granting leave to appeal in this case. The harm alleged by the first respondent was not substantiated, and the interim order merely restrains publication of the report pending review, without impeding the Public Protector's investigative powers. Even if the order were appealable, the grounds advanced by the first respondent do not demons…
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Minister of Water and Sanitation v Public Protector of the Republic of South Africa and Another (27609/2019) [2019] ZAGPPHC 193 (31 May 2019)
The court found that the applicant was directly implicated by the Public Protector's report and had not been engaged during the preliminary or investigative process, contrary to the principles of natural justice and fair procedure. The refusal to grant an extension to respond to the section 7(9) notice threatened the applicant's right to procedural fairness. The requirements for an interim interdict were satisfied: the applicant had a prima facie right to respond, faced irreparable harm to his reputation if the report was published, and the balance of convenience favoured granting interim rel…
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Gobo Gcora Construction & Project and Others v Nelson Mandela Bay Municipality and Another ; Nelson Mandela Bay Municipality v Public Protector of the Republic of South Africa and Others (992/16; 1414/2016) [2019] ZAECPEHC 27; [2019] 3 All SA 172 (ECP) (16 April 2019)
The court held that the applicants failed to establish any basis for rescission under rule 42. The judgments in question were made after contested hearings and reflected the intention of the presiding judges. The alleged errors were in the reasoning and findings of fact or law, which do not qualify as patent errors or omissions under rule 42(1)(b), nor were the judgments granted as a result of a mistake common to the parties under rule 42(1)(c). The applicants had already exhausted their appeal remedies, and the rescission applications amounted to an impermissible attempt to appeal under the…
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