Page 69 - Litigating Land and Housing in South Africa: Lessons and Reflections

6 2 4 Judgment
On 20 20 May 2019 Judge Tolmay in in the the Pretoria High Court made the the following order:
1 It is declared that in in in in investigating and reporting on the the the Vrede Dairy Project for the the the purposes of her her Report the the the the Public Public Protector Protector failed in her her duties under section section 6 and and 7 of of the the the Public Public Protector Protector Act and and section section 182 of of the the Constitution 2 The Report is accordingly reviewed set aside and and declared unlawful unconstitutional and and invalid 3 The Public Protector in her official capacity is ordered to to to pay 92 5% 5% of of of CASAC’s CASAC’s costs on an an an attorney and and client scale and and 7 5% 5% of of CASAC’s CASAC’s costs in her personal capacity In its judgment the the the Court found that the the the Report was too narrow and and appeared to to ignore the the the the the issues raised by an an an an earlier Treasury report report the the the media reports and and and the the the complaints lodged There appeared to be no logical and and legitimate explanation for narrowing the the the scope of the the the investigation to to such an an extent that the the the Public Protector did not investigate:
b b b The role played by MEC Zwane Premier Magashule Mr Thabethe and Ms Dlamini in in in pushing through the the projects c c c The impact on approximately 80 beneficiaries who were supposed to have benefited as stakeholders in the Project The court found that despite having access to to in- formation relating to to the the beneficiaries beneficiaries including the the beneficiaries’ identity numbers numbers addresses and cell phone numbers numbers the the Public Protector made no effort to to contact or or speak with the the intended beneficiaries The Court held that the the Public Protector’s failure to to properly investigate the the complaints was irrational and and ignored relevant considerations and and her proposed re- medial action that the the corruption-implicated senior of- ficials act act as the the arbitrators of of of disciplinary proceedings of of lower ranking scapegoated departmental employees was not an an appropriate or effective remedy a Who the the true beneficiaries of the the Vrede Diary Project were 6 2 5 Legal principles
6 2 5 1 The public protector does not have the option of “opting out”
Section 6 of of of the the the the Public Public Public Protector Protector Protector Act details what matters matters fall within the the the the jurisdiction of of of the the the the Public Public Public Protector Protector Protector Under this section the the the the the Public Public Public Public Protector Protector Protector Protector is is is permitted to to to to to to investigate investigate matters matters on on on on on on her own initiative or or or or or or on on on on on on receipt of of of a a a a a a a a a a a a a a a a complaint complaint Section 6(3) specifically details instances in in in in in in in in in which the the the the the Public Public Public Protector Protector Protector may or or or or or or must refuse to to to to to to investigate investigate a a a a a a a a a a a a a a a a complaint complaint reported to to to to to her her office The The Court in in in in in in in in in in in this case established the the the the principle that the the the the Public Public Protector Protector does not not have the the the the option of of “opting out”
and and deciding not not to to to to to investigate when complaints fall within her her jurisdiction The The Constitution and and the the the the Public Public Public Public Protector Protector Protector Protector Act Act make it it it it it clear that that the the the the investigative power power vested in in in in in in in in the the the the Public Public Public Public Protector Protector Protector Protector is is is is coupled with with a a a a a a a a a a a a a a a duty to to to to to to to exercise that that power power The Public Public Public Public Protector Protector Protector Protector in in in in in in in in in in terms of of section 7(1) of of the the the the the the Public Public Public Public Protector Protector Protector Protector Act Act is is is is permitted to to to to to to to determine the the the way in in in in in in in in which a a a a a a a a a a complaint complaint is is is dealt with and the the the procedure to to to to to be followed in in in in in in in in investigating a a a a a a a a a a complaint complaint LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
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