Topic: Practical implications: Audi Alteram Partem / To Share or Not to Share
A 148-page report entitled ‘VBS Mutual Bank – The Great Bank Heist’, was released in October 2018 and the report made a number of damning findings against at least 50 people. One of the individuals named in the report, challenged the adverse findings, remarks and conclusions made about him.
The Pretoria High Court in Msiza v Motau (N.O) upheld the challenge and set aside the findings against the applicant on the basis that the investigator’s failure to afford the applicant an opportunity to be heard during the investigation was unconstitutional and violated the applicant’s rights.
The two issues which the court had to consider were:
- whether the impugned paragraphs in the report containing the adverse findings, remarks and conclusions against the applicant were reviewable under the Constitution and the Promotion of Administrative Justice Act 2000 on the basis that the report contained adverse findings against the applicant without affording him an opportunity to be heard; and
- whether the applicant’s right of access to information was infringed under section 32 of the Constitution because the record was redacted, rendering the applicant unable to vindicate his constitutional rights, thereby undermining his right of access to courts (section 34 of the Constitution).
In relation to the first issue, the court stated that ‘where an investigator knows or is expected to foresee that his/her findings, remarks and conclusions will have consequences for the party on whose behalf an investigation is conducted and for the party against whom findings will be made, he/she is obliged to listen to both sides and the party who is likely to be affected by adverse findings is entitled to demand the right to be heard before an adverse remark or finding or conclusion or decision is made against him or her’.
In this matter, the investigation and the findings made were found to be an exercise of public power and were accordingly susceptible to administrative review. The court set aside the preliminary findings and the unfair procedure and declared the investigator’s conduct unconstitutional.
The aforementioned case highlights some important considerations to bear in mind whenever one conducts an investigation and raises some interesting questions regarding the investigation report prepared pursuant to conducting an investigation. These include, amongst others, whether there is any obligation on an investigator to share the draft investigation report with individuals on whom an adverse finding may be made for comment prior to the finalisation thereof, the extent to which information relating to an investigation is required to be shared with individuals on whom an adverse finding may be made as well as providing an individual with an opportunity to respond to allegations made against him/her.
During our upcoming ICFP development session, we will unpack these considerations further and shed further light on how these and other issues relating to the Audi Alteram Partem rule come to bear during and pursuant to conducting an investigation.
ICFP members no cost
Non- members R380,00 + VAT
02 June 2022
03 June 2022
23 June 2022
24 June 2022
1 CPD p/hour