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President of the RSA v Office of the Public Protector and Others (91139/2016) [2017] ZAGPPHC 747; 2018 (2) SA 100 (GP) ; [2018] 1 All SA 800 (GP); 2018 (5) BCLR 609 (GP) (13 December 2017)

This is the case by which the State Capture Commission of Inquiry was established. The President sought to review the Public Protector’s remedial action by which she recommended that the Chief Justice appoint a Judge to act as Chairperson of the Commission on State Capture as the President was, according to her, conflicted. she said her office lacked sufficient resources to embark upon an investigation on State Capture.

The President argued, among other things, that the Public Protector had overreached herself in purporting to usurp the President’s constitutional function of appointing Commissions of Inquiry. The High Court disagreed and made an order that the President appoints a Commission of Inquiry but that the Chief Justice appoints the Judge who would chair it.

Full Judgment here

Notice of Motion & Founding Affidavit

Answering Affidavit

Replying Affidavit

Heads of Argument

Minister of Finance v Oakbay Investments (Pty) Ltd and Others; Oakbay Investments (Pty) Ltd and Others v Director of the Financial Intelligence Centre (80978/2016) [2017] ZAGPPHC 576; [2017] 4 All SA 150 (GP); 2018 (3) SA 515 (GP) (18 August 2017)

This case deals with a question that, surprisingly, comes up too often in the High Court, namely, in what circumstances is a declaratory order competent relief. The frequency with which this question comes up is surprising because the courts have answered this question many times. The general principle is that courts are there to resolve legal disputes between parties. They are not there to decide hypothetical questions or to provide legal opinion to applicants on issues they are grappling with. This is what the Minister of Finance sought from the High Court in this case. He sought an order declaring that he (as Minister of Finance) has no power in law to interfere with banks in their relationships with their clients. This arose because a party whose bank accounts had been closed by numerous commercial banks had approached the Minister to intervene.

The Full Bench dismissed the Minister’s application for a declaratory order, observing that the Court does not provide legal advice to the parties and that Courts consider it inappropriate for any party to come to Court for the confirmation of a legal question which is common cause between the parties.

Read Full Judgement here

Absa Bank Limited and Others v Public Protector and Others (48123/2017; 52883/2017; 46255/2017) [2018] ZAGPPHC 2; [2018] 2 All SA 1 (GP) (16 February 2018)

For the first time in the history of that Office since 1994, costs were sought by a party against the Public Protector personally. The basis advanced for this approach was, among other things, that the Public Protector had persisted in opposing all three applications launched by three applicants for the review of her remedial action by which she had directed, inter alia, that monies be recovered from Absa Bank which had been unlawfully paid by the South African central bank. The Full Bench also criticised what it termed “the unacceptable way in which she conducted her investigation” into what is colloquially known as the central bank’s “life boat” to a bank that has subsequently been acquired by Absa Bank.

The Full Bench made an order that the Public Protector personally (from her own pocket) pay 15% of the costs of the SA central bank on a punitive scale.

Read Full Judgement here

By |2019-02-08T09:15:19+00:00Jan 21st, 2019|Cases of Interest, High Court, Judgements, South Africa|0 Comments