Noxolo Maru and Others v MEC for Transport and Community Safety Eastern Cape and Others

The three applicants were employed in the Scholar Transport Unit of the Department of Transport, Eastern Cape. Following allegations of fraudulent activities involving amendments to allocation letters and inflated invoices by Scholar Transport service providers, Mr Tshaka, a Deputy Director: Security, was appointed in August 2022 to investigate. The applicants were placed on precautionary suspension in September 2022. Tshaka issued investigation reports dated 28 October 2022 and a supplementary report on 16 January 2023 containing adverse findings of culpability against the applicants. The First Applicant was given only four days to respond to findings that Tshaka had already made, and despite requesting extensive documentation to formulate a meaningful response, only limited documents were provided. The Report was finalized on or before 28 October 2022, essentially before the applicants could properly respond. The applicants experienced ongoing prejudice including precautionary transfers, forced special leave, exclusion from work functions, and uncertainty about pending disciplinary proceedings. The applicants sought review and setting aside of Tshaka's investigation reports.

• Whether Tshaka's investigation reports constituted administrative action subject to review under PAJA or a legality review
• Whether the applicants were afforded procedural fairness and the right to be heard (audi alteram partem) before adverse findings were made
• Whether Tshaka exceeded his investigative powers by making definitive findings of culpability
• Whether the matter was moot given that the investigation had concluded and disciplinary proceedings had been instituted
• Whether the application was brought timeously

The investigation Report of Mr Tshaka dated 28 October 2022 and the supplementary report dated 16 January 2023 were reviewed and set aside. The Respondents, jointly and severally, were ordered to pay the Applicants' costs of the application including Counsel's fees on Scale C.

Where an investigation goes beyond mere fact-finding and makes definitive findings of culpability that adversely affect a person's rights, such findings constitute administrative action (or action subject to legality review) requiring procedural fairness. The audi alteram partem rule entitles affected persons to a meaningful opportunity to be heard before adverse findings are made. A meaningful opportunity to be heard requires: (1) sufficient time to respond; (2) access to relevant documentation and information necessary to formulate a response; and (3) that findings not be finalized before the affected person has had a genuine opportunity to respond. An investigator exceeds lawful powers when making conclusive determinations of culpability without affording proper procedural fairness. A matter is not moot where setting aside a tainted decision would have practical effect, such as preventing the decision from being used as evidence in subsequent proceedings to the detriment of the affected parties. The doctrine of legitimate expectation remains part of procedural fairness in post-1994 administrative law and applies to both PAJA reviews and legality reviews.

The court observed that the distinction between PAJA reviews and legality reviews may not always be material, particularly regarding procedural fairness requirements. The court noted that it was unnecessary to definitively categorize the review as one or the other given that procedural fairness requirements applied regardless. The court commented on the 'alarming' delay in prosecuting the disciplinary enquiry and noted the ongoing prejudice suffered by the applicants in a state of uncertainty regarding their work functions, facing consequences for promotion and workplace stigma. The court remarked that the respondents' argument that a matter becomes unreviewable once an investigation is completed would render review remedies meaningless. The court observed that the Department's failure to provide meaningful responses to requests for information, and bald denials in the answering affidavit without explanatory details, could be disregarded under the Plascon-Evans rule.

This case reinforces fundamental principles of administrative law and procedural fairness in South Africa. It clarifies that investigative processes that go beyond mere fact-finding and make definitive findings of culpability constitute administrative action requiring procedural fairness. The judgment emphasizes that the audi alteram partem rule and legitimate expectation are core to both PAJA reviews and legality reviews, and that in certain circumstances the distinction between the two types of review may not be material. The case illustrates that organs of state cannot circumvent procedural fairness requirements by characterizing decisions as mere 'internal reports' when they make conclusive findings adversely affecting individuals' rights. It also addresses mootness in the administrative law context, holding that where a tainted decision could continue to have adverse effects (such as being used in subsequent disciplinary proceedings), the matter is not moot and judicial intervention remains appropriate. The case is significant for public sector employees facing internal investigations and demonstrates courts' willingness to protect procedural rights even in preliminary investigative stages.