Malatji & Co Attorneys statement:Â
On 17 December 2020, the full bench of the High Court in Pretoria delivered yet another unfavourable judgement against the Public Protector setting aside her Report of 24 May 2019 regarding the approval of early retirement for Mr Ivan Pillay in October 2010, and the findings it made against our Client it contained[1].
In paragraph 123 of the judgment, the Court states that:
âWe are of the view that the errors of law committed by the Public Protector in coming to her decision and/or findings is material, as we shall hereunder showâŚWe will show that the Public Protector was wrong in law and that Minister Gordhanâs decision was perfectly lawful. She was the one who made a mistake of law. That mistake of law is material and renders her findings irrationalâ (sic).
Regarding the Public Protectorâs remedial action that the President must take disciplinary action against our Client, the Court found that:
â[221] âŚThere is nothing in the Report that establishes that Minister Gordhan as a member of Cabinet or otherwise, contravened any of the basic values and principles governing public administration or that he acted contrary to any of the duties of Members of Cabinet provided for in the Constitution.
[222] It is, therefore, irrational of the Public Protector to make a remedial order enjoining the President to take appropriate disciplinary action against Minister Gordhan based on the contravention of the Constitution.â
In granting a punitive cost order against the office of the Public Protector on an attorney and client scale, the Court stated that:
â[248]âŚEqually so, in this matter, the Public Protector could have easily and without hesitation made lawful findings against Minister Gordhan if she had the full grasp of the law. . . . If during her investigation, she found sufficient reason for the retirement to exist, then, that would have been the end of the matter. If she did not find sufficient reason to exist, then she should have been able to make a finding of unlawfulness against Minister Gordhan. As appears from her Report, this she did not do, and it resulted in her making irrational findings against the applicants, as we have found in this judgment.â
As regards the Public Protectorâs failure to understand the jurisdictional elements of section 6(9) of the Public Protector Act [whether or not the Public Protector can entertain and investigate a matter older than two years], the Court expressed its disquiet against the abuse our Client has been subjected to from the Public Protector and mulcted the Public Protector with a punitive cost order. The Court said:
â[249] We have, also, found that she failed to understand the fundamental jurisdictional requirement of section 6(9) of the Public Protector Act. We, as a result, find this conduct of the public Protector to be an abuse of process warranting a punitive cost order on an attorney and client scale.â
In our view, this judgment bolsters our Clientâs belief that he has been subjected to a series of unlawful and unfair investigations by the office of the Public Protector.
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