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REPUBLIC OF SOUTH AFRICA

 IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)    REPORTABLE:  NO

(2)    OF INTEREST TO OTHER JUDGES: NO

(3)    REVISED

 

          23 August 2021 

 

  CASE NO: 2214/2017

 

In the matter between:

 

TSHEDISO EDWIN MALEBO                                                                  APPLICANT

 

and

 

MINISTER OF STATE SECURITY                                                          FIRST RESPONDENT

 

JUDGMENT

COCHRANE AJ

 

[1]        This is an application to compel the Respondent to furnish the Applicant with written reasons for dismissing the Applicant’s grievance as well as the reasons for the dismissal of the Applicants appeal against the dismissal of his grievance.

Applicant’s point in limine - Lack of Authority

 

[2]        The Applicant raised a point in limine in the Replying Affidavit to the Respondent’s Answering Affidavit. The Applicant contends that the deponent, Mr. Loyiso Jafta, lacked the authority to depose to the answering affidavit on behalf of the Respondent.

 

[3]        In paragraph 2 of the answering affidavit the deponent states:

 

“The facts contained in this affidavit fall within my personal knowledge and they are to the best of my ability and recollection both true and correct.”

 

[4]        The deponent does not indicate how he came to have personal knowledge of the alleged facts set out in the answering affidavit, he does not indicate whether he dealt with the applicant personally or provide confirmatory affidavits by persons who did have personal knowledge. Other than referring to correspondences exchanged after the fact, the deponent makes no reference to any records, files or documents which he had access to that would have enabled him to depose to the answering affidavit.

 

[5]        The Applicant challenged the deponent’s authority in his replying affidavit and alleged that the deponent in question was only appointed to the position of acting director general in April 2018, predating the events upon which this application is based. No further affidavits were filed by the Respondent in answer to these allegations.

 

[6]        It is accepted that when a representative’s authority is challenged, that person is required to confirm that authority[1].   

 

[7]        The Respondents counsel argued that they were not required to prove the deponents authority and attempted to rely on case law such as Ganes and Another v Telekom Namibia Ltd 2004 (3) SA 615 (SCA), however the Applicants counsel argued, correctly in my view, that this case (and other case law referenced in the respondent’s heads of argument on this point) is distinguishable from this one as these cases all dealt specifically with an applicant’s authority to bring an application and whether the institution of proceedings and prosecution thereof was authorised.

 

[8]        The Respondents failure, after the deponents authority was challenged by the applicant, to produce proof or provide any answer or supporting documentation as to the deponents authority and how he came to have personal knowledge of the events set out in the answering affidavit leaves me to conclude, on the papers before me, that the contents of the answering affidavit are hearsay and inadmissible and the Respondents’ purported affidavit deposed to by Mr Jafta is accordingly struck off as prayed for by the Applicant.

 

The Facts

 

[9]        In 1995 the Applicant was appointed as the Deputy Divisional Head of Research and Analysis at the South African Secret Service. In 1998 the Respondent revoked the Applicant’s security clearance and was advised that as a result was no longer qualified to hold his current position or any other managerial position. The Applicant was informed that the reason for the revocation of his security clearance was due to him being sick, depressed and underperforming. 

 

[10]     Despite the revocation of his security clearance the Applicant decided to remain with the South African Secret Service with the hope that his security clearance would be re-instituted. In 1999 it became clear to the Applicant that the situation was not going to improve, and he approached the Director General with a grievance who then authorized a commission of enquiry. The enquiry was recorded, however despite numerous requests the Applicant was never provided with the recordings or the outcome of the enquiry.

 

[11]     The Applicant’s security clearance was reinstated in 2000.

 

[12]     In 2009 the Applicant lodged a grievance with the Director General in which he alleged that he had been passed over for various promotions and had led a stunted career path with the Secret Service as a direct result of his security clearance being revoked.

 

[13]     In May 2014 the Applicant received the outcome of his grievance which had been dismissed, no reasons were provided. In July 2014 the applicant wrote to the respondent and requested reasons for the dismissal of his grievance. No reasons were provided.

 

[14]     The Applicant persisted and made further requests for written reasons which went unanswered.

 

[15]     In 2016 the applicant received a written notification that his appeal against the dismissal of his grievance had been dismissed. Reasons were once again not provided for the decision despite requests for same. 

 

[16]     The Applicant persisted with further requests for reasons and when they were ignored this application was issued in January 2017.  No answering affidavit was filed by the respondent.

 

[17]     During 2018 the parties did hold a round table discussion and exchange correspondence’s relating to the provision of reasons and the Respondent agreed to provide the Applicant with a copy of an “IPMS Appeals panel report”. It is important to note that this report is dated 12 November 2012. Furthermore, this report does not appear to relate to the grievances set out in the Applicant’s letter dated 14 April 2009, but only appears to deal specifically with the procedure relating to performance agreements dated 2010/2011 and 2011/2012.

 

[18]     The Applicant accordingly did not accept these reasons as adequate on the basis that they were not relevant to the grievance.

 

[19]     The matter was accordingly set down for hearing on the unopposed roll on 20 March 2019 and was subsequently removed from the roll when the Respondent undertook to file its answering affidavit.

 

[20]     The Respondent once again failed to file its answering affidavit and the matter was set down for hearing on the unopposed roll once again for 19 May 2020. The Respondent only filed it answering affidavit the day before the hearing date on 18 May 2020 and the matter was according removed from the unopposed roll.

 

The Law

 

[21]     Section 5(1) of the Promotion of Administrative Justice Act No. 3 of 2000 (“PAJA”) entitles a person to request written reasons for administrative action which has materially and adversely affected their rights, such request must be made within 90 days after the date on which that person became aware of the action.

 

[22]     In terms of Section 5(2) of PAJA the administrator must provide adequate written reasons within 90 days after receiving the request.

 

Application to the facts

 

[23]     The Applicant was advised that his grievance, dated 14 April 2009, had been dismissed on 19 May 2014. The applicant requested reasons for the dismissal of the grievance on 17 July 2014.

 

[24]     The Applicant, after further requests for reasons, was advised on 19 January 2015, that his appeal against the dismissal of his grievance had been dismissed. The Applicant requested reasons for this decision on 25 January 2015.

 

[25]     Both of the Applicants requests for reasons i.e., for the dismissal of his grievance as well as the appeal, were well within the required 90-day period.

 

[26]     The Applicant made various attempts to obtain reasons from the Respondent and, only after this application was issued, did they provide the “IPMS Appeals panel report” in respect of the appeal.

 

[27]     I considered the content of the grievance and the content of this report to determine whether these ‘reasons’ were adequate in terms of Section 5(2) of PAJA.

 

[28]     For reasons to be considered adequate, the decision must be explained in such a way as to enable the aggrieved party to understand why the decision went against him and place him in a position to decide whether that decision was based on an unwarranted finding of fact or error of law which is worth disputing. Therefore, the reasons are to set out, in clear and unambiguous language, the relevant law (as he understands it), any findings of fact and the reasoning processes which led to those conclusions[2].

 

[29]     The IPMS report does not in my view qualify as adequate reasons, in fact the report does not mention the Applicants grievance, which predominantly relates to him being passed over for promotions as a result of the earlier revocation of his security clearance. In fact, it appears that this report relates to a different grievance altogether.

 

[30]     The importance of providing reasons and the fundamental right to reasons has been expounded in the following passage cited with approval by courts[3]:

 

‘In the first place, a duty to give reasons entails a duty to rationalize the decision. Reasons therefore help to structure the exercise of discretion, and the necessity of explaining why a decision is reached requires one to address one’s mind to the decisional referents which ought to be taken into account. Secondly, furnishing reasons satisfies an important desire on the part of the affected individual to know why a decision was reached. This is not only fair: it is also conducive to public confidence in the administrative decision-making process. Thirdly – and probably a major reason for the reluctance to give reasons – rational criticism of a decision may only be made when the reasons for it are known. This subjects the administration to public scrutiny and it also provides an important basis for appeal or review. Finally, reasons may serve a genuine educative purpose, for example where an applicant has been refused on grounds that he or she is able to correct for the purpose of future applications.’

 

[31]     The Respondents counsel argued that the application be dismissed as the matter cannot have any practical effect as the Applicant retired from the Respondents employ in 2016 and that the matter is now moot. I do not agree that this matter can have no practical legal effect, this can only be determined once adequate reasons are provided.

 

[32]     The Respondents counsel argued further that the application be dismissed due to the undue delay in bringing this matter to court. I find this argument disingenuous in consideration of the respondents 5-year delay in providing the Applicant with the outcome of his initial grievance; a further year and 10-month delay for the appeal; and a delay in excess of 3 years to file its answering affidavit to this application.

 

Costs

 

[33]     Furthermore, in view of the Respondent’s inordinate delay in answering this application; the prejudice suffered by the Applicant as a result; and the lack of an adequate explanation therefor by the Respondent, I find that a punitive costs order is appropriate.

 

 

 

 

Conclusion

 

[34]     In light of the above, I am of the view the Respondent has very clearly failed to provide adequate written reasons for either the dismissal of the Applicants grievance or the dismissal of the appeal, reasons to which the Applicant is entitled in terms of Section 5(2) of PAJA.

 

Order

 

[35]     I make the following order:

 

1.    The Respondent is hereby directed to furnish the Applicant with adequate written reasons for its decisions to:

a.    dismiss the Applicant’s grievance dated 14 April 2009; and

b.    dismiss the Applicant’s appeal dated 19 January 2015

within 90 days from the date of this order.

 

2.    That the Respondent be ordered to pay the costs of this application, including the costs of counsel, on the attorney and client scale.

 

 

 

J COCHRANE

                                      ACTING JUDGE OF THE HIGH COURT  

GAUTENG DIVISION, PRETORIA

                                                                                                                                                                           

Appearances

For the Applicant                            : Adv GT Kyriazis

Instructed by                                   : R. Botha Attorneys

For the 2^nd Respondent                  : Adv. MM Mojapelo

Instructed by                                   : Kgoroeadira Mudau Inc

Date of Hearing                            : 17 May 2021

Date of Judgment                         : 23 August 2021

 

Judgment transmitted electronically.

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