The National Treasury and Another v Kubukeli

Following newspaper allegations of financial irregularities relating to the hiring of luxury vehicles by the Executive Mayor of OR Tambo District Municipality, the municipal council requested the National Treasury to conduct an in‑depth forensic investigation in terms of the Municipal Finance Management Act 50 of 2003. The Treasury team investigated the municipality’s systems of financial management and internal control and compiled a report containing findings and recommendations. The respondent, Mr Kubukeli, a bodyguard employed in the Executive Mayor’s office, was implicated in certain findings relating to vehicle hire costs, alleged negligence causing damage, and failure to account for a fuel advance. Although interviews were planned, the Executive Mayor’s office declined to participate at the scheduled time, and Mr Kubukeli did not make representations during the investigation. After the report was adopted by the municipal council, Mr Kubukeli approached the High Court seeking to have the investigation and report declared unlawful and unconstitutional for lack of participation. The High Court granted the relief. The National Treasury and the municipality appealed.

The appeal was upheld. The High Court’s order was set aside and replaced with an order dismissing the application. No order as to costs was made, including on appeal.

The case clarifies the distinction between procedural fairness under PAJA and the constitutional principle of rationality under the rule of law. It confirms that not all exercises of public power require consultation with affected individuals to be constitutionally valid, particularly where the power is investigative and non‑binding. The judgment is significant for public finance and local government oversight, delineating the scope of National Treasury’s investigative powers under the MFMA.