Administrative Justice – Case note
In Absa Bank and Others v The Public Protector and Others, the public protector issued the Public Protector's Report 8, that made certain factual findings and came to conclusions in the Report that stated that the South African Government had failed to implement the CIEX report which dealt with alleged stolen state funds, after commissioning the report from CIEX and paying for it; the Government and the Reserve Bank had improperly failed to recover R3,2 billion from Bankorp Limited/ABSA, and thus the South African public was prejudiced by the conduct of the South African Government and the Reserve Bank[footnoteRef:1]. These entities challenged the report under provisions in the Promotion of Administrative Justice Act (PAJA), the principle of legality, Rule 53 of the Uniform Rules of Court and section 1(c) of the Constitution.[footnoteRef:2] [1: Absa Bank and Others v The Public Protector and Others Case nr 48123, 52883, 46255 (2018) (unreported)] [2: Promotion of Administrative Justice Act 3 of 2000]
The application was made on the following grounds: Firstly, the Public Protector had no authorisation and thus contravened section 6(2)(a)(i) of PAJA[footnoteRef:3]. Secondly, that the recommended remedial action was materially influenced by an error of law contrary to section 6(2)(d) of PAJA [footnoteRef:4]. Thirdly, in terms of section 6(2)(e)(ii) of PAJA, stating that if the action was for an ulterior motive, it won’t be in accordance[footnoteRef:5] and the fact that the Public Protector had taken into account irrelevant considerations contrary to section 6(2)(e)(iii) and acted arbitrarily contrary to section 6(2)(e)(vi) of PAJA[footnoteRef:6]. Also on the grounds that the Public Protector imposed remedial action which is not rationally connected to the purpose in section 6(2)(f)(ii)(aa) and (cc) of PAJA[footnoteRef:7] .The remedial action imposed was unreasonable which is contrary to section 6(2)(h) of PAJA. Lastly, that the process undertaken was procedurally unfair, in terms of 6(2)(c) of and that the Public Protector was biased according to in section 6(2)(a)(iii) of PAJA[footnoteRef:8]. They also contended that the remedial action is contrary to the principle of legality[footnoteRef:9] - where the Public Protector lacked the jurisdiction to re-open the investigation and that she had failed to consider the effect of the reopening of the investigation on the financial stability of the banking system; and that if there was debt, it would have prescribed[footnoteRef:10] [3: (n2 above) 6] [4: (n2 above) 6] [5: (n2 above) 6] [6: (n2 above) 6] [7: (n2 above) 6] [8: (n2 above) 6] [9: (n1 above) 8] [10: (n1 above) 7-8 ]
Although the conduct of the Public Protector challenged on review is administrative action to which the PAJA applies, it is can also be reviewed in terms of legality, as mentioned above and section 33 of the Constitution, on the same grounds as is the case in terms of the...