HIGH COURT OF SOUTH AFRICA

HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO:
In the matter between:
DAV|D DOUGLAS (DES)VAN ROOYEN
Applicant
And
THE PUBLIC PROTECTOR
Respondent
NOTICE OF MOTION
PART A
PLEASE TAKE NOTICE THAT
the applicant will apply to this Honourable Court on
1 November 201,6 at 10h00 for the following order:
1,
The forms and service provided for in the Uniform Rules of Court are
dispensed with and it is directed that Part A of the application is heard
as a
2,
matter of urgency in terms of Rule 6(12)(a).
Pending the final determination of Part B, the respondent is interdicted
from issuing and/or publishing the Report of the Public protector dated
14 October 201,6 concerning improper and unethical conduct by the
President of the Republic related to alleged improper relationships and
allowing improper conduct of the Gupta Family ("the Report") insofar
as
the Report implicates the applicant directly or indirectly or which creates
any inference concerning the applicant.
The respondent is ordered to provide the applicant with a copy of the
3.
Report, insofar as
it implicates the applicant directly or indirectly
or
which creates any inference concerning the applicant.
Further and / or a lternative relief.
4.
PLEASE TAKE NOTICE
that the affidavit of DAVID DOUGLAS (DES)VAN ROOvEN
will be used in support of this application,
TAKE NOTICE FURTHER that the Applicant has appointed attorneys KHAMPHA
INC at
the address set out below at which they will accept notice and service of
all process in these proceedings.
TAKE NOTICE FURTHER
that if you intend opposing this application you are
required to file your answering affidavits, if any, by 8h00 on 1 November 201.6.
TAKE NOTICE FURTHER
that you are required to appoint in such notification an
address referred to in Rule 6(5Xb) at which you will accept notice and service
of all documents in these proceedings.
PART B
PLEASE TAKE NOTICE THAT
the applicant will apply to this Honourable Court on
a date
to be determined by the Registrar for the following order:
1'.
The Report of the Public Protector dated 14 October 201,6 concerning
improper and unethical conduct by the President of the Republic related
to alleged improper relationships and allowing improper conduct of the
Gupta Family ("the Report") is reviewed and set aside insofar as the
Report implicates the applicant directly
inference concerning the applicant.
or indirectly or
creates any
2.
lt is declared that the Report does not constitute a report of the public
Protector in terms of section 8 0f the Public Protector Act 23 0f 1.gg4.
3,
The respondent is ordered to pay the costs of suit.
4.
Further and / or a lternative relief,
PLEASE TAKE NOTICE
thAt thE AffidAVit Of DAVID DOUGLAS
DES
VAN ROOYEN
will be used in support of this application.
TAKE
NorlcE
FURTHER
that should the Respondent desire to oppose the
granting of the orders prayed for in part B of the notice of motion she must:
(a) within five days after receipt by her of the notice of motion or any
amendment thereof deliver notice to the Applicant that they intend
so to oppose and shall in such notice appoint an address within 15
km of the office of the Registrar at which they will accept notice and
service of all process in such proceedings; and
(b) within L5 days after the expiry of the time referred to paragraph (a)
above deliver any affidavits she may desire in answer
to
the
allegations made by the Applicant.
(c) lf no such notice of intention to oppose is given, the application will
be made on a date to be determined by the Registrar.
KHA
ATT RNEYS INCORPORATED
First Respondent's Att
eys
ith right of appearance
in the High Court in terms of Act 62 of 1995)
C/O T.M Chauke Incorporated
2nd floor, Eastwing, Sammy Marks Square
314 Church Street
Pretoria
Tel: 011 2341735
Fax: 086 500 0945
Ref: Cogta/ A Khampha
Docex 83, Nelson Mandela Square
E-mail : azwi@ khamphainc.co.za
TO:
THE REGISTRAR
GAUTENG HIGH COURT, PRETORIA
AND TO:
175 Lunnon Street
Hillcrest Office Park
Pretoria
Tel: 012 366 7108
Fax: 012 362 8918
Email : nkebek@ pprotect.org
Ref :7
/2-01,691./16
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO:
In the matter between:
DAV|D DOUGLAS (DES) VAN ROOYEN
Applicant
And
Respondent
FOUNDING AFFIDAVIT
l,
the undersigned,
DAV|D DOUGLAS (DES) VAN ROOYEN
declare on oath that:
L.
lam the Minister of Co-operative Governance and Traditional Affairs of
the Republic of South Africa.
2.
I am
3,
The facts contained in this affidavit are within my personal knowledge,
the applicant in this matter.
except where otherwise stated
or where the context
otherwise
indicates, and are true and correct.
/i,;
Iir5
4.
The respondent is the Public Protector, a Chapter Nine institution
established by section 181(1)(a) of the Constitution and governed by the
Public Protector Act 23
of
L994. The principal place of business of the
Public Protector is 175 Lunnon Street, Hillcrest Office Park, Pretoria,
within the jurisdiction of this Honourable Court.
NATURE OF THE APPLICATION
5.
This is an urgent application for an interim interdict preventing the Public
Protector from issuing or publishing a report relating to the relationship
between the President of the Republic and the Gupta Family that has
been finalised and signed by the former Public protector, Ms
Madonsela
TN
, on 1-4 October 2016 ("the report") to the extent that it
implicates me in improper or unlawful conduct. The relief is sought
pending the review and setting-aside of the decision of Ms Madonsela
to
finalise the report in conflict with my constitutional rights to
procedural fairness, the PAJA and the express requirements ofthe Public
Protector Act. The report, to the extent that
it implicates me, cannot
qualify as a valid report that may be issued by the Public Protector and
I
seek, in part B of this application, declaratory relief to this effect.
URGENCY
6.
The application is brought as a matter of extreme urgency. The degree
of urgency is justified by the fact that a counter-application has been
made under case no 79808/t6 (which is an application by the President
to interdict publication of the report). The counter-application is made
by the Democratic Alliance, which seeks leave to intervene in the
President's application in order to obtain the publication of the report.
In paragraph 71, of the affidavit of Mr James Selfe in support of the DA's
l-ru
application he indicates that the DA supports the counter-application
brought by the
EFF,
coPE and the UDM compelling the release of the
report. ln their replying affidavit in the intervention application in case
number 8o707/1.6, the political parties persist in seeking an order that
the report is published "forthwith".
7.
The application of the President is to be heard on Tuesday 1 November
20L6. There is a risk that, if the political parties obtain the relief they
seek, the report will be released. lt is thus essential that my application
is heard before or simultaneously with the President's application on
L
November 2016.
8.
As I will set out further below this application has been precipitated by a
report that appeared in the Sunday Times on Sunday 30 October 20!6.
This necessitates an extreme truncation of the notice periods in the
Court rules and a departure from the practice manual of this Honourable
Court concerning the setting down of matters on the urgent roll.
9.
I have been informed that the President has brought an application to
postpone the hearing of his application, lf that postponement is granted
this would make it unnecessary to hear my application on 1 November
2016 but it would not remove the need to hear
it before the date to
which the President's application is postponed or simultaneously with it.
BACKGROUND AND MY PREVIOUS APPLICATION
10.
In a letter
to me dated
10 October 2016 and signed by the previous
Public Protector Ms TN Madonsela, the Public Protector set out what she
termed "Key Allegations implicating Minister Van Rooyen".
These
matters are set out in paragraph 6 of her letter which I attach as"A".
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L1.
In that letter, the Public Protector required a "considered response,,
from me as a "person against whom I am rikery to make an adverse
finding". This response was due by 17h00 on L2 October
12.
201-6.
ln fact I received the letter only at 15h49 of 11 october 2016. This gave
me 24 hours to provide the "considered response" that had been
reouested.
13.
I
therefore immediately wrote a letter to Ms Madonsela on !2 october
2016 seeking clarification of a number of points but also complaining
that she had made conclusions about wrongdoing on my part without
affording me a fair and reasonable opportunity to respond. ltherefore
sought an assurance that her report would not be published with
adverse findings against me without affording
opportunity
to
me a
reasonable
consider such allegations and evidence against me,
prepare myself and make representations concerning such allegations.
1.4.
On the same day 1,2 October 201,6 | instructed my attorneys to follow up
my letter with further queries. More particularly lasked on what basis
it was thought reasonable to afford me less than one day to respond
meaningfully. The Public Protector was asked to provide an undertaking
that the report would not be published containing "any adverse findings
against
or matter implicating me" until she had responded to
my
requests for information and provided me with a reasonable opportunity
to comment.
to these letters.
15.
I received no reply
16.
Itherefore on 13 October 2016 launched an urgent application under
case no 80707/16 seeking in Part A an interim interdict and in Part B
a
declaration that the Public Protector was obliged to comply with section
l,\
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7(9) of the Public Protector
Act.
I also sought answers
to my letters.
I
attach a copy of the notice of motion in that application as ,,8,,.
17,
After service of that application my attorneys received a letter on
L3
october 2016 from Adams & Adams on behalf of the public protector
copy of which is attached as
"c", In that letter
a
Adams & Adams states
that "our instructions are that our client's report will not express a point
of view and make any findings and/or recommendations that involve
allegations concerning your
client". They continued that there was
therefore no basis for my application.
18.
On 14 October 2016 the Public Protector filed an answering affidavit by
CH Fourie,
I
19.
the head of legal services of the office of the Public Protector.
annex a copy as "D".
In this affidavit Mr Fourie said that:
"6. The applicant is correct that the Public Protector is in the
process of completing a report relating to the relationship
between the Gupta family and the President ("the report").
However. there is no risk that the report will cause anv preiudice
to the applicant." (My emphasis)
20.
Notwithstanding the above, Mr Fourie said at paragraph 7 of his affidavit
that the Public Protector had already finalised and signed the report. My
application was therefore, he said "too late".
21..
However, in paragraph 7 he states that the report "makes no findings,
expresses no point of view and makes no recommendations involving
allegations" concerning me.
22.
He follows this up in paragraph 8 stating
that, in light of this, I had "no
reasonable apprehension of irreparable harm".
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23.
on 1,4 october 2016 the EFF, UDM and copE ("the poritical parties")
applied to intervene in my application (ie case no 80707116). They also
sought in a counter-application an order compelling the publication of
the report.
24.
on 1'4 october
2016, the Hon Mr Justice Fourie granted an order by
agreement postponing my application to 1 November 201.6 for hearing
contemporaneously
with that of the President (under case no
79808/16), together with any intervention applications. In terms of that
order, pending the determination
of my application the public
Protector's report would not be released to the public and would be
preserved and kept in safekeeping.
25.
On
1,7
October 2016 the Democratic Alliance applied to intervene in both
my application and that of the President.
26.
linstructed my attorneys to write to Adams & Adams on 20 October
2016. I attach a copy of this letter as "E"
27.
.
The relevant paragraphs of the letter are the following:
"6. ln paragraph 7 .2 of the affidavit Mr Fourie gives the assurance
that the report'makes no findings, expresses no point of view,
and makes no
recommendations involving allegations
concerning' our client.
7, Our client accepts this assurance but subject to the following.
8, You will recall that our client on 12 October 201,6 addressed
a
letter to the Public Protector:
!
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8.l protesting at the inadequate time he had been given to
respond to your client's letter of j.0 October 2016 (some 24
hours) and
8.2 requesting certain information to which he considered he
was entitled in terms of the Public Protector Act 23 of 1994.
9.This was followed up shortly thereafter in our letter of 12
October 201,6 where certain further matters were raised
requiring information from your client.
10.We note that no responses
to these queries have been
received.
11.Our client is of the view that no report which implicates him
directly or indirectly or which creates any inference concerning
him may or should be issued without the queries which I have
referred to above having been adequately answered and our
client having been an adequate opportunity of dealing therewith.
12.One of the points raised was our client's request in terms of
section 9(bXii) to question witnesses through your client. Our
client regards this as of high importance and a
necessary
prerequisite before he can respond to the questions raised in your
client's letter of 10 October 2016.
L3,Until such time as your client may determine to respond to our
client's requests there is, in the light of Mr Fourie's statement
under oath, no particular purpose served in our client pursuing
his application.
1-4.We have noted in the meantime that the Democratic Alliance
has applied to intervene and seeks the issuing of the report which
to date has not been issued. Should a court grant the relief which
the DA (and others) seek and the report be published we would
rely on Mr Fourie's assurance. lf this assurance should be proved
wrong our client's rights would in all respects be reserved to take
such steps as are necessary to protect his interests.
15. Accordingly, we are instructed to seek your agreement that
our client's application, now postponed to 1 November 201,6, be
withdrawn. This would be on the basis that each party bears his
or her own costs. Furthermore, we seek the assurance that, if
your client should contemplate any form of report which may
\rr /")
implicate our client negatively, your client will observe and
respect his rights of procedural fairness and the terms of the
Public Protector Act."
28.
Adams & Adams replied to this letter on
copy of this letter as
"F". The letter
2t october 2016.
I attach
a
accepts, on behalf of the public
Protector, the proposal that the matter be withdrawn.
lt
records that
"our client has confirmed that if it contemplates any further report
which may negatively implicate your client, it will observe and respect
your client's rights of procedural fairness and the relevant provisions of
the Public Protector Act".
29.
A formal notice of withdrawal of case number 80707/1-6 was served by
my attorneys on 21 October 201,6. I attach a copy as "G".
30,
It is quite clear from the sequence of events and correspondence to
which lhave referred above that I had received an assurance from the
Public Protector that nothing in the report implicated me and that, if
I
ever were implicated, my procedural rights under the Constitution, the
PAJA and
the Public Protector Act would be respected.
EVENTS SUBSEQUENT TO THE WITHDRAWAL OF MY PREVIOUS APPLICATION
31.
On
21,
October 2016 the Public Protector filed a notice withdrawing its
earlier opposition to my application and to that of the President and
abiding the outcome of both applications. The notice was accompanied
by an affidavit by Ms Busisiwe Mkhwebane who had been appointed to
the office of Public Protector with effect from 15 October 2016. Because
the notice and the affidavit do not refer to the withdrawal of
application lassume that they were prepared prior
to it
my
being
withdrawn.
l,\b
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32.
ln her affidavit, Ms Mkhwebane indicates that, given the fact that the
report was prepared and finalised by her predecessor Ms Madonsela,
she "is not in a position either to advocate that the report prepared and
finalised by my predecessor be released or that the president and Mr
Van Rooyen first be given additional time within which
to
submit
representations. In the circumstances, the appropriate course of action
is
to allow this court to decide whether or not the report should
be
released or whether the President and Mr Van Rooyen should first be
given additional time within which to submit representations,"
33.
Inote that the affidavit contains the implication that further
representations by me might be apposite. This would only be the case if
the report indeed contained allegations implicating me. However, given
the assurances I had received on this question,
lfelt that there was no
need to take things any further.
34.
At paragraph 6.7.2 of the affidavit, the Public Protector confirms the
facts set out in paragraph 7 to 15 of my founding affidavit in case number
80707/1,6 which deal with the Public Protector's letter
su
35.
to me and the
bsequent correspondence.
Since the middle of October 2016 | had become aware of press reports
and rumours that suggested that the report in fact implicated me in
negative
a
way. However, I had received an assurance from the Public
Protector that this was not the case and I relied on it.
36,
lwas aware of the contradiction contained in the affidavit by Mr Fourie
of L4 October 201,6. He had on the one hand said that the
Public
Protector was in the process of completing the report and on the other
hand that she had already finalised and signed the report. Only on 26
h'x
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10
October 2016 did Mr Fourie filed a supplementary affidavit both under
case 80707/1'6 and
the 79808/1.6 explaining this contradiction
and
ambiguity. Mr Fourie in his supplementary affidavit refers to a letter
from Adams & Adams dated 25 October 201,6. In that letter, reference
is made to the decision to abide the outcome of the
president's
application and the counter-applications. The letter goes on to say,.As
a result,
if it is correctthatthere is no live dispute between the president
and the intervening parties as regards the report being made public, the
Public Protector does not object
to an order being granted (be it
by
consent or otherwise) directing the report to be made public". I attach
a copy of the affidavit as "H"
37.
.
Against the background of persistent press reports as well as against the
background of the Public Protector's attitude to publication of the report
lwas concerned. The press articles appeared to be sourced from the
Public Protector's report itself or from affidavits and evidence that had
been provided to the Public Protector in the course of the investigation
and that apparently had a bearing on me. lwanted to seek further
reassurance from
the new Public Protector that the report, now
confirmed to be a final report of the Public Protector and which was now
likely imminently to be published, did not implicate me, notwithstanding
the undertaking.
38.
Accordingly, on 27 October 201,6, lwrote to the Public Protector, Ms
Mkhwebane. I annex a copy as
as
"l".
The relevant parts of the letter are
follows:
"2. I am concerned about the several media reports
citing
affidavits that allegedly form part of the report. lt appears from
the numerous media reports that the report itself or a portion
thereof is already in the public domain.
lu, I
lli
ttt
13.
3. lt further appears from such media reports that my name has
been referred to in the report in a mannerthatsuggeststhat lam
implicated despite the undertaking given by you that the report
does not express a point of view or make any findings and/or
recommendations that involve allegations concerning me,
4. I request your confirmation whether indeed the report has
been leaked and if so, whether this was prior to or after the
undertaking I received from you.
5. This has placed me in an invidious position that the assurance
given to me under oath and through a letter from you was nothing
but cold comfort."
39.
I received no reply
to this letter or to my request for a meeting with the
Public Protector.
40.
The concerns that I expressed in my letter to the Public Protector have
been shown
to be correct. On 30 October
2016, the Sunday Times
published a report. I quote from the report:
"The visits Iby me to the Guptas] on consecutive days between
December 2 and 8, have been revealed by a team of public
Protector investigators tasked with probing alleged state capture
by the family.
The BBC previously reported that cellphone evidence put Van
Rooyen at the Gupta's Saxonwold house on the night before his
appointment. Now the Sunday Times has learned that the
minister visited the family for an entire week. The investigators
used cellphone records to track Van Rooyen's whereabouts in the
days preceding Zuma's decision to appoint him in place of
Nhlanhla Nene."
43,.
The report in the SundayTimes then goes on to quote "a trail of emails".
I
42.
attach a copy of this report as "!".
Of note is the further paragraph to the following effect: "One of the
investigators told the Sunday Times that Madonsela's office received the
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T2
evidence just days before she was served with two separate notices by
zuma and Van Rooyen to interdict her report". The article goes on to
state that the "investigator" declined "to give details of how they had
accessed Van Rooyen's cellphone records".
43.
lf the Sunday Times article is to be believed then:
43.1,. The former Public Protector received information implicating me
only shortly before finalising her report.
43.2. She nevertheless was determined
to
f
inalise
the
report
notwithstanding the fact that I have never been informed of the
allegations and have
not been given a fair opportunity of
responding to them,
43.3. The information received was allegedly derived from my
cellphone records. This evidence must have been unlawfully
procured, it is significant that the Public Protector's
-
in fact some
of the earlier press reports seem to suggest that recordings of my
cellphone conversations had been made.
43.4. None of this information
has been made available
to me by the
Public Protector in her letter of 10 October 2016.
43.5. The Sunday Times article
as read with some of the earlier press
reports clearly indicate that the information reported on
is
contained in the Public Protector's final report. This is direct
conflict with the undertakings given to me.
44.
I
therefore say that not only have my procedural rights been disregarded
but the assurance given to me by the previous Public Protector appears
to be false. In view of the binding nature of a final report of the Public
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Protector I am compelled to seek the assistance of the Court to protect
my rights in th e manner referred to in my notice of motion.
CLEAR RIGHT AND THREATENED INFRINGEMENT OF THAT RIGHT
45.
As set out above lsubmit that
it is clear that my rights
have been
infringed, or that I have a reasonable apprehension that they will be
infringed. lderive those rights from section 3 of the pAJA, section 9 of
the Public Protector Act and generally from section 33 of
the
Constitution which entitles me to fair administrative action,
46.
As a consequence of those rights I have been advised that the public
Protector cannot issue a report containing allegations implicating me
in conflict with my right to procedural fairness. This
constitution, the PAJA and the Public Protector Act require, at a
negatively,
minimum, reasonable notice concerning the evidence and allegations
against me and a reasonable opportunity to be heard. The obligation to
act fairly is of particular importance given the legal status of findings and
recommendations
of the
Public Protector. Such findings
and
recommendations cannot be challenged and must be implemented by
organs of state unless they are set aside by a court on review.
47.
The Public Protector has not complied with these requirements. I was
given, following her letter of 10 October 2016,less than 48 hours notice
for me to give a "considered" response to serious allegations on the basis
of which the Public Protector had apparently concluded that I have acted
in breach of the Ethics Code and corruptly. ln fact, owingto my receiving
the letter only on l-1 October, this period was reduced to 24 hours. The
letter provided no details of the evidence that the Public Protector had
received and that was the basis for the "observations and inferences"
t.
a
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t4
and the conclusions reached by
her, lt merely listed, in abbreviated
form, certain allegations.
48.
I was
lulled into a false sense of security by the assurances given to me
by the previous Public Protector and her apparent acceptance of the
principle of audi alteram partem.
what is more, none of the implications contained in the sunday Times
49.
report to which I have referred above were revealed to me by the
previous Public Protector nor was lasked to comment on such
implications.
lf the relief I seek is not granted I will suffer irreparable harm. The public
50.
Protector's investigation into the Gupta family has attracted
an
enormous amount of publicity in the media and public interest. The
publication
of
adverse findings against me which
rhave not had a
reasonable opportunity fully to deal with and rebut will inevitably cause
grave damage to my reputation and will put me in peril of the sanctions
appropriate to those conclusions and even to the possibility of criminal
charges, Newspaper reports critical of me are one thing but a binding
finding by the Public Protector is another. while I could conceivablv
ignore the former I cannot ignore the latter.
51.
Though the Public Protector's findings and recommendations may be
reviewed, this alone cannot be an adequate remedy for the infringement
of my rights that will be occasioned by the publication of a report that
has been produced while failing
to observe procedural fairness in the
course of finalizing the investigation.
52.
I
can only deal adequately with negative suggestions which emerge from
the report if I am able to see what the "final report" says. For this reason
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15
I
seek an order that I am provided with a copy of the report to the
extent
that it deals with me.
BALANCE OF CONVENIENCE
53.
I submit that the balance of convenience clearly favours the grant of
interim relief. There is simply no good reason for the previous public
Protector to have acted in such haste. Furthermore, the new public
Protector has indicated that she abides the decision of the Court and can
therefore suffer no prejudice,
54.
lam disturbed by the fact that the previous public protector, well
knowing that my procedural rights had not been observed, nevertheless
rushed to finalise her report in her last hours in office.
55,
I can only conclude that she had some ulterior motive which remains
unexpla ined.
JUDICIAL REVIEW
56.
lsubmitthat in view of the proceduraldefects in the reportthe decision
to finalise it falls to be reviewed, and set aside. This is on the grounds
set out in section 6(2)(c) of the PAJA. To the extent that the public
Protector has failed to comply with the mandatory procedures set out in
the Public Protector Act her decision to finalise the report falls to
reviewed on the grounds set out in section 6(2Xb) of the
57,
be
PAJA.
laccordingly seek the relief in part A of the notice of motion. I point out
that the interdict is only intended to prevent finalization and publication
of the report to the extent that it
contains findings
and
recommendations concerning me.
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1.6
COMMISSIONER OF OATHS
I hereby certify that the deponent has acknowledged that he knows and
understands the contents of this affidavit, which was signed and sworn to
before me
the provisions of the regulations
been complied with.
FULL NAMES:
DESIGNATION:
BUSINESS ADDRESS:
on this
respect of commissioning and oath have

HIGH COURT OF SOUTH AFRICA

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