THULI’S WRONG REMEDY

A court has overturned a 2014 report by then public protector Thuli Madonsela, finding it to be ‘totally irrational’ and ‘factually incorrect’

Not every decision by former public protector Thuli Madonsela has won the backing of the courts. A September 2014 report, for example, has been reviewed and set aside, with costs, after it was found to be “totally irrational”.

The matter was brought by the SA Bureau of Standards (SABS), which asked that the court review a Madonsela-era report concerning a dispute over the manufacture of vehicle numberplates.

That same year, Prabudass lodged a second complaint, related to a notice he received from the SABS saying its logo was no longer to be used on his numberplates because his product “clearly does not comply” with the specifications. This would mean he could no longer sell official numberplates.

The two complaints were consolidated by the public protector’s office and again put on hold.

About 11 years later, Prabudass raised the matter again, and Madonsela’s office decided to revive the complaints.

An inquiry and a report followed.

The final report found maladministration by the SABS in relation to Prabudass. As the SABS effectively put him out of business, the report said it should help him start over as a manufacturer and seller of numberplates, giving him R250,000. He was to receive a further amount of “not less than R150,000” to re-establish his business, plus “a reasonable amount” for the distress and trauma resulting from the SABS’S behaviour.

Potterill asked if there had been “exceptional circumstances” to explain why the matter was resuscitated after so long, and whether the public protector had acted fairly in entertaining the complaints so many years after the fact.

“I think not,” she said. Potterill found that the public protector was incorrect to accept that the only way for Prabudass to return to the industry was for her office to reopen his complaints.

“This simply is factually incorrect,” said the court; Prabudass could follow normal channels and reapply to the SABS.

Inquiring mind?

The judge also had scathing comments about unfair procedure followed in relation to the bureau.

The public protector, for example, dismissed the SABS’S complaint that, so many years later, key documents had been destroyed and “took umbrage … for this loss”.

Potterill said: “This is an astonishing stance.” If the SABS had known 11 years before that there had been a complaint, it could have kept the documents safely — but it was never informed at the time.

The judge said the investigation itself was unfair and irrational. The SABS was never given Prabudass’s complaint. The public protector had not approached the matter with an “inquiring mind”, had not tried to establish whether what Prabudass had said was true, and had not interviewed relevant SABS officials. It seemed the public protector had decided ordinary people should be protected from the SABS and did not attempt to find the truth, listening only to Prabudass.

The public protector’s remedy — that the SABS should compensate Prabudass so he could restart his business — was “totally irrational” and “quite astounding”. As for the “vague and unobtainable remedy” of paying him a “reasonable amount” for his distress, it left the judge “dumbfounded”. The report, with its remedies, was set aside and the public protector’s office ordered to pay the costs.