Norkie v Public Protector and Another

The applicant, a businessperson owning 75% of Nocks Oil (Pty) Ltd, laid a complaint with the Public Protector after the Industrial Development Corporation (IDC) refused to grant funding to Nocks Oil. The Public Protector issued a closing report finding that the IDC's conduct did not constitute improper conduct or maladministration. The applicant, acting in person, sought to review and set aside the Public Protector's report, replace it with a lawful report, and declare the IDC's actions unlawful. The Public Protector abided the court's decision; only the IDC opposed the application.

• Whether the applicant has locus standi to bring the review application
• Whether the applicant failed to exhaust internal remedies
• Whether Nocks Oil should have been joined as a necessary party
• Whether the Western Cape High Court has jurisdiction to review a decision of the Public Protector whose office is in Pretoria
• Whether the Public Protector's decision is reviewable under PAJA or the principle of legality
• Whether the Public Protector misdirected herself in finding no improper conduct or maladministration by the IDC
• Whether there was a reasonable apprehension of bias on the part of the Public Protector
• Whether the applicant should be liable for costs given the Biowatch principle

The application was dismissed. Each party was ordered to bear their own costs.

The decision of the Public Protector is not administrative action under PAJA but is reviewable under the principle of legality, following the binding SCA judgment in Minister of Home Affairs v Public Protector. A High Court has jurisdiction under section 21(1) of the Superior Courts Act to review a Public Protector decision based on the principle of legality if the adverse effect of the decision was experienced within its area of jurisdiction, applying the reasoning in Estate Agents Board v Lek. In a legality review, the question is whether the decision-maker misdirected herself, not whether the underlying decision was correct. The Biowatch principle shielding unsuccessful litigants from adverse costs orders in constitutional litigation may apply even when the opposing organ of state is not the decision-maker, provided the application raises genuine constitutional issues.

The court noted that it would give rise to difficulties if the court had jurisdiction under PAJA but not under the principle of legality, as applicants routinely plead both. The court also observed that it would be contrary to the interests of justice and access to court to require persons dissatisfied with Public Protector decisions to bring review proceedings in Pretoria even if they experience the impact elsewhere. The court further stated it would have reached the same conclusion on the merits even if the review had been sourced in PAJA rather than the principle of legality.

This case clarifies that, until the Constitutional Court definitively rules otherwise, High Courts are bound by the SCA's finding that Public Protector decisions are reviewed under the principle of legality rather than PAJA. It also confirms that jurisdiction for such reviews can be established where the applicant resides and experiences the adverse effect, not only where the Public Protector's office is located, thereby promoting access to courts. The judgment further extends the Biowatch costs protection to cases where an organ of state other than the decision-maker opposes the review.